Moore v. State, 1179S303

CourtSupreme Court of Indiana
Citation273 Ind. 3,401 N.E.2d 676
Docket NumberNo. 1179S303,1179S303
PartiesCharles W. MOORE, Roy D. Stamper, Dudley Gray and Marilyn J. Hunter, Appellants (Defendants below), v. STATE of Indiana, Appellee (Plaintiff below).
Decision Date18 March 1980

R. Davy Eaglesfield, III, Indianapolis, Harry L. Zerbe, Lawrenceburg, for appellants.

Theodore L. Sendak, Atty. Gen., Michael Gene Worden, Asst. Atty. Gen., Indianapolis, for appellee.

HUNTER, Justice.

The defendant, Charles W. Moore, was convicted by a jury of conspiracy to commit the felony of dealing in cocaine, a class B felony, Ind. Code § 35-41-5-2 (Burns 1979 Repl.); four counts of possession of a controlled substance, a class D felony, Ind. Code § 35-48-4-7 (Burns 1979 Repl.); and one count of possession of a controlled substance, a class C felony, Ind. Code § 35-48-4-6 (Burns 1979 Repl.). He was sentenced to eighteen years for the class B felony, two years for each of the class D felonies, and five years for the class C felony, all sentences to run concurrently. He now raises the issue of whether or not his convictions should be reversed because the trial court failed to appoint counsel for him after his repeated requests for court-appointed counsel. Due to our disposition of the case on this issue, we do not have to consider any further errors.

The facts from the record relevant to this issue show that defendant was represented by counsel from the time of his arraignment in the Ripley Circuit Court in May, 1978, until September 13, 1978. At that time defendant's counsel filed a motion to withdraw from employment which was granted by the trial court. The court then held a hearing on September 25, 1978, to determine how defendant would be represented at his trial which was set for November 20, 1978.

The court began the hearing by notifying the defendant that the court had approved the withdrawal of defendant's private attorneys. Defendant stated that he knew his attorneys had to withdraw because he had no money to pay them at that time. He explained that he had raised money to pay a bond on a charge in a Marion County court and that he had paid his attorneys for representing him in a federal case in Indianapolis. The charges in the federal case as well as the charges filed in Marion County were dismissed. Defendant said he did not know what to do except have a court-appointed attorney since he had no more money to pay his private attorneys.

The court then asked defendant if he had a job or any assets. Defendant testified that his father owned a well drilling business and he and his brother both worked with their father in this business. He stated that he did not receive a regular paycheck but that he, his father and brother would periodically split whatever was earned from drilling wells. Defendant stated that he had just paid tuition for a course at a technical school to become a certified welder. Defendant and his wife owned a car and had been buying a house through FHA financing for six and one-half years. There was no inquiry as to the current value of the car, the amount of any indebtedness on the car, or the amount of any other liabilities defendant might have had.

The prosecutor objected to court-appointed counsel because "The man is employed and apparently a part owner in a business, an automobile and drilling equipment." The court denied defendant's request to have court-appointed counsel without any further inquiry as to defendant's actual income or the amount of equity defendant had in his home or the drilling equipment.

Defendant later requested another opportunity to talk to the court concerning his lack of counsel and a hearing was held on November 9, 1978. Defendant stated that he had changed jobs and was now a salesman; that he had taken a one-month training course and had only received one paycheck; that he hadn't been able to pay his father back for the money he borrowed before to pay the attorneys the last time; and that he couldn't get a second mortgage on his home because the FHA did not give second mortgages. He again asked for a court-appointed attorney. The court stated that he would not appoint an attorney since defendant did own real estate and had some equity in that as well as in the equipment. However, there is no evidence in the record of the actual amount of equity defendant had and there is no evidence of any attempt to evaluate defendant's income or total assets and liabilities.

The trial began on April 27, 1979, without defendant being appointed legal counsel. Defendant did ask permission of the court for a minister, Reverend Phillip Willis, to assist him during the trial, and the court agreed to this. Reverend Willis began his voir dire examination of the jury by espousing a doctrine of born again Christian theology. He asked questions of each juror concerning their belief in born again Christianity and the Bible. He based all of his defense of defendant on the fact that defendant had a regenerating experience in Christ and was now a new man. Defendant points to innumerable instances during the trial of irregularities caused by the legal inexperience of Reverend Willis.

Defendant contends that the failure of the trial court to appoint him legal counsel has denied him his constitutional right to the assistance of counsel and has resulted in a denial of his right to a fair trial. There is no doubt that we are dealing here with one of the most fundamental of our constitutional guarantees. A defendant charged with a crime is guaranteed the right to be represented by counsel by Article 1, Section 13 of the Indiana Constitution and the Sixth and Fourteenth Amendments to the Constitution of the United States. State v. Minton, (1955) 234 Ind. 578, 130 N.E.2d 226; Wilson v. State, (1943) 222 Ind. 63, 51 N.E.2d 848. A failure to permit a defendant to have counsel amounts to a denial of due process, and there can be no valid criminal trial unless a defendant is represented by counsel if he desires counsel. Fitzgerald v. State, (1970) 254 Ind. 39, 257 N.E.2d 305; State v. Minton, supra; DeFrisco v. State, (1972) 153 Ind.App. 609, 288 N.E.2d 576.

The guarantee of the right to be represented by counsel includes the right for an indigent defendant in a criminal prosecution to have counsel provided for him at state expense. Pallett v. State, (1978) Ind., 381 N.E.2d 452; Swinehart v. State, (1978) Ind., 376 N.E.2d 486. It is a judicial function to determine whether counsel shall be appointed at public expense, Fulks v. State, (1970) 255 Ind. 81, 262 N.E.2d 651, and this determination is within the sound discretion of the trial judge. Hendryx v. State, (1892) 130 Ind. 265, 29 N.E. 1131. While it is not possible to set specific monetary guidelines which would determine a defendant's indigency, there are several factors which must be considered. Since we are dealing with such a fundamental constitutional right, the record in each case must show that careful consideration commensurate with the right at stake has been given to the defendant. Although we find no Indiana cases which discuss what specific factors must be considered, these factors have been discussed by courts in other jurisdictions. See, Annot., 51 A.L.R.3d 1108 (1973).

First, it appears clear that the defendant does not have to be totally without means to be entitled to counsel. If he legitimately lacks the financial resources to employ an attorney, without imposing substantial hardship on himself or his family, the court must appoint counsel to defend him. Anaya v. Baker, (10th Cir. 1970) 427 F.2d 73; United States v. Cohen, (8th Cir. 1969) 419 F.2d 1124; State ex rel. Partain v. Oakley, (1976) W.Va., 227 S.E.2d 314; In re Smiley, (1967) 66 Cal.2d 606, 58 Cal.Rptr. 579, 427 P.2d 179. See also, Hardy v. United States, (1964) 375 U.S. 277, 84 S.Ct. 424, 11 L.Ed.2d 331; American Bar Association Project on Minimum Standards for Criminal Justice, Approved Draft (1968), Standards Relating to Providing Defense Services § 6.1.

The determination as to the defendant's indigency is not to be made on a superficial examination of income and ownership of property but must be based on as thorough an examination of the defendant's total financial picture as is practical. The record must show that the determination of ability to pay includes a balancing of assets against liabilities and a consideration of the amount of the defendant's disposable income or other resources reasonably available to him after the payment of his fixed or certain obligations. People v. Castile, (1979) 71 Ill.App.3d 728, 28 Ill.Dec. 259, 390 N.E.2d 426; Minniefield v. State, (19...

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