Orem City v. Bergstrom, 981690-CA.
Decision Date | 02 December 1999 |
Docket Number | No. 981690-CA.,981690-CA. |
Citation | 1999 UT App 350,992 P.2d 991 |
Parties | OREM CITY, Plaintiff and Appellee, v. Travis L. BERGSTROM, Defendant and Appellant. |
Court | Utah Court of Appeals |
Brett J. Delporto, Ballard, Spahr, Andrews & Ingersoll, and Gregory G. Skordas, Gustin, Christian, Skordas & Caston, Salt Lake City, for Appellant.
Robert J. Church, Orem, for Appellee
Before Judges BILLINGS, DAVIS, and JACKSON.
¶ 1 Travis L. Bergstrom appeals the trial court's denial of his Motion for a New Trial and Motion for Arrest of Judgment. We reverse and remand for a new trial.
¶ 2 Bergstrom was charged with stalking, a class B misdemeanor in violation of Utah Code Ann. § 76-5-106.5 (1999). At his arraignment, Bergstrom asked the trial court what he must do to secure a public defender. After asking about Bergstrom's age and employment, the trial court denied Bergstrom's request for court-appointed counsel.1 ¶ 3 Bergstrom then proceeded to prepare for trial pro se. He made a timely discovery request to Orem City (the City), dated April 24, 1998. However, the City did not respond to Bergstrom's discovery request until after the trial, which was held on June 8, 1998. Bergstrom represented himself at the bench trial, and presented two witnesses. He was convicted of stalking and sentenced to six months in jail, with all but fourteen days suspended.
¶ 4 Shortly after the trial, Bergstrom hired an attorney and moved for a new trial or for an arrest of the judgment. The trial court denied those motions, and Bergstrom now appeals.
¶ 5 "A district court has broad discretion in deciding whether to grant or deny a motion for a new trial." Child v. Gonda, 972 P.2d 425, 428 (Utah 1998). Bergstrom contends the trial court erred by determining that he was not indigent and denying him court-appointed counsel, and that this error warrants a new trial. "[T]he underlying empirical facts regarding [a] claim of indigency are reviewable for clear error; the conclusion as to whether those facts qualify the defendant as indigent is reviewable for correctness." State v. Vincent, 883 P.2d 278, 281 (Utah 1994). Because our resolution of this issue is dispositive of Bergstrom's appeal, we need not address his remaining arguments.
¶ 6 Bergstrom argues that the trial court failed to comply with the statutorily mandated procedure for determining whether a defendant is indigent, and this error requires reversal. The City counters that Bergstrom had the burden of proving his indigence, and that he failed to carry that burden.
Johnson v. Zerbst, 304 U.S. 458, 462-63, 58 S.Ct. 1019, 1022, 82 L.Ed. 1461 (1938).
¶ 8 Layton City v. Longcrier, 943 P.2d 655, 658 (Utah Ct.App.1997) (citation omitted), cert. denied, 953 P.2d 449 (Utah 1997), and cert. denied, 523 U.S. 1125, 118 S.Ct. 1811, 140 L.Ed.2d 949 (1998). Rather, the right to counsel for a defendant charged with a misdemeanor attaches only if the court determines, pretrial, to impose jail time. See Scott v. Illinois, 440 U.S. 367, 369, 99 S.Ct. 1158, 1160, 59 L.Ed.2d 383 (1979)
v. Hamlin, 407 U.S. 25, 40, 92 S.Ct. 2006, 2014, 32 L.Ed.2d 530 (1972). In this case, Bergstrom was sentenced to serve fourteen days of a six-month sentence. Thus, his Sixth Amendment right to counsel was implicated.3 "The denial of the constitutional right to counsel requires reversal." In re W.B.J., 966 P.2d 295, 296 (Utah Ct.App. 1998). Accordingly, we must determine whether the trial court properly denied Bergstrom's request for appointed counsel. If not, we must reverse.
¶ 9 The record shows that the court considered only two facts pertinent to Bergstrom's claim of indigence: his age and his employment status. This inquiry does not begin to meet the degree of scrutiny necessary to protect the fundamental right to the assistance of counsel. "Determining whether a defendant [is indigent] is a fact-intensive inquiry," requiring a consideration of the defendant's entire financial situation. State v. Vincent, 883 P.2d 278, 283 (Utah 1994). Our supreme court has stated that courts making an indigency determination should consider the defendant's "`employment status and earning capacity; financial aid from family or friends; financial assistance from state and federal programs; [the defendant's] necessary living expenses and liabilities; [the defendant's] unencumbered assets, or any disposition thereof, and borrowing capacity.'" Id. at 283-84 (citation & footnotes omitted) (alterations in original).
¶ 10 After Vincent was decided, our legislature enacted the Indigent Defense Act, Utah Code Ann. §§ 77-32-101 to -704 (1999) (the Act). The Act codifies and implements the procedural protections afforded by the Sixth Amendment. See Utah Code Ann. § 77-32-301(1) (1999) ( ).
Utah Code Ann. § 77-32-202(3)(b) (1999) (emphasis added). Section 77-32-202 "squarely places on trial courts the burden of ensuring that constitutional and [statutory] requirements are complied with." State v. Gibbons, 740 P.2d 1309, 1312 (Utah 1987) (guilty plea context).
¶ 12 In this case, the trial court considered none of the factors articulated in Vincent or in Section 77-32-202 of the Act. We therefore hold that the trial court's inquiry into Bergstrom's claim of indigence was deficient as a matter of law and violated his Sixth Amendment right to the assistance of counsel. Accordingly, we reverse and remand for a new trial.
¶ 13 Because this issue has not appeared before our courts, but is likely to in the future, "a statement of the law concerning [indigency determinations under section 77-32-202] in all trial courts in this state is appropriate." Gibbons, 740 P.2d at 1312 ( ). When a criminal defendant who faces the threat of actual incarceration asks for court-appointed counsel, it is the court's duty to advise the defendant of the financial information it needs to properly evaluate the claim of indigence.
¶ 14 Providing a defendant with a written form would ensure that the defendant clearly understands what information the court needs to evaluate a claim of indigence. The affidavits of indigence currently in use, see, e.g., Utah Code Ann. § 77-32-202(2)(a) (1999) ( ), or some similar financial statement form would serve this purpose well.4 Once the defendant has been advised what information he or she must provide, the burden then shifts to the defendant to supply this information. See Vincent, 883 P.2d at 283
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¶ 15 whether a defendant is truly indigent and deserving of court-appointed counsel. Gibbons, 740 P.2d at 1314. The fundamental right to counsel deserves all practical safeguards to protect it, and we feel it prudent to err on the side of caution.
¶ 16 Because we hold that the trial court's error was harmful as a matter of law and warrants reversal, we need not determine whether the other claimed errors were harmful, or whether we should invoke the doctrine of cumulative error. See State v. Heaton, 958 P.2d 911, 919 (Utah 1998)
(. )
¶ 17 The trial court erred as a matter of law when it determined that Bergstrom was not indigent based solely on his age and employment status. This error affected Bergstrom's Sixth Amendment right to assistance of counsel. Accordingly, we reverse and remand for a new...
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