Nikander v. District Court In and For First Judicial Dist.

• Decision Date: 13 January 1986
• Docket Number: No. 85SA31,85SA31
• Citation: 711 P.2d 1260
• Parties: Richard P. NIKANDER, Petitioner, v. The DISTRICT COURT In and For the FIRST JUDICIAL DISTRICT of the State of Colorado, and Winston W. Wolvington, One of the Judges Therein, Respondents.
• Court: Colorado Supreme Court

Page 1260

711 P.2d 1260

Richard P. NIKANDER, Petitioner, v. The DISTRICT COURT In and For the FIRST JUDICIAL DISTRICT of the State of Colorado, and Winston W. Wolvington One of the Judges Therein, Respondents.

No. 85SA31.

Supreme Court of Colorado En Banc.

Jan. 13, 1986.

David F. Vela, State Public Defender, Claire Levy, Deputy State Public Defender, Denver, for petitioner.

Nolan L. Brown, Dist. Atty., Mary E. Risko, Sr. Deputy Dist. Atty., Golden, for respondents.

ROVIRA, Justice.

Petitioner, Richard P. Nikander, filed this original proceeding under C.A.R. 21 for relief in the nature of mandamus. He challenges as an abuse of discretion the trial court's finding that he was not indigent and, consequently, that he would not be allowed to proceed in forma pauperis on appeal and would not be provided a trial transcript at public expense. We issued a rule to show cause and now make the rule absolute and remand for further proceedings.

In 1981, the petitioner was charged with second-degree murder in Jefferson County. At that time, he was found to be indigent and the respondent trial judge appointed the public defender's office to represent him. Prior to trial, the public defender withdrew, and petitioner was represented by private counsel at trial.

Petitioner was convicted of second-degree murder and sentenced to the Department of Corrections for twelve years. On appeal, he was represented by the public defender. The conviction was reversed, and a new trial was ordered by the court of appeals in August 1983.

In November 1983, the respondent granted petitioner's motion to proceed in forma pauperis. A second trial took place in June 1984 which resulted in a mistrial. The petitioner was represented by the public defender. After this trial, the petitioner's bond was reduced and he was able to post bond and thereby obtain his release from custody.

The third trial took place in October 1984 with the petitioner again being represented by the public defender. The jury returned a verdict of guilty of manslaughter. The petitioner was sentenced to the Department of Corrections for a term of four years with credit granted for time served. He was also advised of his right to appeal.

In January 1985, seeking appointed counsel to represent him on appeal, petitioner submitted an Application for Court-Appointed Counsel along with a letter from his employer verifying his weekly income. The letter states that as of December 20, 1984, petitioner "has been put on permanent part time ... due to a slow down in business. [Petitioner] has been assigned to 20 hours or less, per week. [Petitioner] is making $5.00 per hour at this time." The application states that the petitioner is single and his monthly income is $400 and his monthly expenses for rent, food, and medical bills are $350. It also shows that the petitioner owns a 1979 Chevrolet automobile valued at $1,700. A deputy public defender determined that petitioner was eligible for court-appointed counsel and recommended that petitioner's application be granted. § 21-1-103(3), 8 C.R.S. (1978) (determination of indigency shall be made by the state public defender, subject to review by the court).

On January 14, 1985, after a hearing, the respondent court found that the petitioner was not indigent and therefore not eligible for representation by the public defender on appeal. The respondent terminated the prior appointment of the public defender and refused to authorize the preparation of the trial transcript at public expense.

The petitioner contends that he is eligible for court-appointed counsel because his monthly income falls below the Eligibility Income Guidelines established in Chief Justice Order 84-5. ¹ He also claims that without court-appointed counsel and a transcript of the proceedings his constitutional rights of due process and equal protection, which assure an indigent defendant the right to appeal his conviction without invidious discrimination, will be violated.

The respondent in his answer brief urges us to discharge the rule because the petitioner based his monthly income on a workweek of 20 hours or less, there was no evidence that petitioner was incapable of generating additional income beyond the 20 hours, and he indicated "ownership of a 1979 automobile valued at $1,700 which could be given in security for representation."

At the outset, we note that there is no record available of the hearing in which the respondent considered petitioner's request for counsel to represent him on appeal and for a trial transcript. The petitioner attributes the absence of the record to a lack of funds. Thus the facts we rely on are obtained from the petition and answer brief of the respondent along with exhibits attached to the petition. ²

The determination of whether a person is indigent and, therefore, entitled to appointment of counsel and a free transcript for purposes of an appeal rests initially in the sound discretion of the trial court and is reviewable only for abuse of discretion. However, such a determination, though entitled to great weight, is subject to careful scrutiny for the reason that it involves a basic constitutional right. Griffin v. Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956) (denial of adequate appellate review to the poor while granting such review to others is violative of due process and equal protection). See also In re Patterson, 136 Colo. 401, 317 P.2d 1041 (1957).

The initial burden of establishing indigency is on the...