People v. Cardenas, 02SA236.
| Decision Date | 18 November 2002 |
| Docket Number | No. 02SA236.,02SA236. |
| Citation | 62 P.3d 621 |
| Parties | In re The PEOPLE of the State of Colorado, Plaintiff, v. Benjamin CARDENAS, Defendant. |
| Court | Colorado Supreme Court |
Rehearing Denied January 13, 2003.1
Mark T. Adams, District Attorney R. Jason Richards, Deputy District Attorney Sterling, Colorado, for the Plaintiff.
Janet D. Zimmerman Sterling, Colorado, for Defendant.
This original proceeding under C.A.R. 21 arises out of a criminal case currently pending in Logan County Court. The issue is whether the state must appoint, at its own expense, an interpreter to serve as a private translator for out-of-court discussions between a defendant and his pro bono attorney. We hold that the trial court did not abuse its discretion in refusing to appoint an interpreter for the Defendant under the circumstances of this case.
Defendant, Benjamin Cardenas, pled guilty in Logan County Court to one count of driving under the influence (DUI) and is currently awaiting sentencing. At the time his plea was taken, he was not represented by an attorney. However, when his case came before the court for sentencing, Janet Zimmerman, representing the Defendant pro bono, entered her appearance on his behalf.2
Defendant is a Spanish-speaker who speaks no English. Because Ms. Zimmerman speaks no Spanish, she has been unable to have any substantive communication with her client. Her only information regarding the case was derived from her discussions with one of Defendant's friends, who apparently speaks some English.
At the sentencing hearing, Zimmerman notified the court of her belief that Defendant's guilty plea was coerced by the state and was therefore involuntary. However, because of the language barrier between herself and Defendant, she could not learn sufficient details about the case in order to determine whether Defendant's plea should be withdrawn. Rather than hire and pay for an interpreter in order to assist her in investigating the circumstances surrounding Defendant's plea, Zimmerman requested that the trial court appoint, at state expense, an interpreter to serve in that capacity. The trial court denied Zimmerman's request. The court, however, continued the sentencing date and arranged for an interpreter to be present at the next hearing solely for the purpose of translating the in-court proceedings. Defendant filed a petition pursuant to C.A.R. 21 and this court issued a rule to show cause. We now discharge the rule.
The issue in this case is the narrow question of whether the trial court abused its discretion in failing to provide, at state expense, a private interpreter to translate out-of-court discussions between Defendant and his pro bono attorney. We conclude that the answer is no.
Defendant relies on section 18-1-403, 6 C.R.S. (2002), in support of his argument that out-of-court interpreting services must be provided. In that section, the General Assembly expressed its intention to provide indigent defendants with legal representation at state expense:
[A]ll indigent persons who are charged with or held for the commission of a crime are entitled to legal representation and supporting services at state expense, to the extent and in the manner provided for in articles 1 and 2 of title 21, C.R.S.
§ 18-1-403, 6 C.R.S. (2002).3 In Defendant's view, because the cost of legal representation is being supplied pro bono by Ms. Zimmerman, the state need only pay for the cost of "supporting services," namely, the cost of a private interpreter. Without an interpreter, Defendant argues that Zimmerman will be unable to provide adequate and competent representation and he will therefore be deprived of his constitutional right to the assistance of counsel.
Defendant is correct in his assertion that all defendants have a fundamental right to be represented by counsel during criminal prosecution, and that indigent defendants are entitled to have counsel appointed at the expense of the state. See Colo. Const. art. II, § 16; Allen v. People, 157 Colo. 582, 404 P.2d 266 (1965); U.S. Const. amend VI; Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).
Although indigent defendants are entitled to state-paid legal representation and supporting services, Defendant fails to notice the last phrase in section 18-1-403 which provides that such representation is only, "to the extent and in the manner provided for in articles 1 and 2 of title 21, C.R.S." § 18-1-403, 6 C.R.S. (2002). The General Assembly has created an agency charged with providing legal representation and services to indigent defendants: the office of state public defender. See § 21-1-101 to -106, 6 C.R.S. (2002). Pursuant to section 21-1-103(3), 6 C.R.S. (2002), the public defender's office, upon application from a defendant, is required to make a determination that the defendant is indigent before he may obtain the services of that office.
In this case, Defendant has not applied for the services of the public defender. Instead, he chose to be represented by Ms. Zimmerman. While an indigent defendant has the right to legal representation and supporting services at state expense, he does not have the right to pick the attorney of his choice. See People v. Coria, 937 P.2d 386 (Colo.1997)
; People v. Shook, 186 Colo. 339, 527 P.2d 815 (1974); Valarde v. People, 156 Colo. 375, 399 P.2d 245 (1965). If Defendant wants the state to pay the costs of his attorney and supporting services, his only choice is to be represented by the public defender, or in the case of a conflict, a state-appointed alternate defense counsel. See § 21-2-101 to -106, 6 C.R.S. (2002). While he certainly has a right to be represented by Ms. Zimmerman, the state is not obliged to pay the costs of that representation.
In addition, Defendant points to Chief Justice Directive 90-01 (amended Aug. 16, 2001), to support his view that the trial court should have appointed a translator. Chief Justice directives represent an expression of Judicial Branch policy, to be given full force and effect in matters of court administration. See Office of the State Court Adm'r v. Background Info. Servs., Inc., 994 P.2d 420, 431 (Colo.1999)
. Defendant reads directive 90-01, an expression of policy regarding the hiring of interpreters, much more broadly than we do. Pursuant to the directive, the only situation in which the appointment of a state-paid interpreter is mandatory is for translation of in-court proceedings. The directive, we conclude, does not require the trial court to appoint a private interpreter under the facts of this case.
We encourage lawyers to engage in pro bono representation of indigent defendants. However, we have found no statute or case which would lead us to conclude that the trial court abused its discretion in refusing to appoint an interpreter for the Defendant.
The trial court did not abuse its discretion in refusing to appoint a private interpreter for Defendant. Accordingly, the rule to show cause is discharged.
Our rule to show cause required briefing and response on the following question:
Whether the county court has discretion to appoint a translator for an indigent client who is represented by a pro bono attorney in a criminal case.4 (emphasis added).
In my view, the county court erred in determining that it did not have discretion to appoint an interpreter to assist Cardenas in communications with his pro bono attorney.
When Cardenas entered his guilty plea, he was without the assistance of counsel. The only interpreter available to him in the guilty plea proceeding was a law enforcement employee. Recognizing a factual and legal basis for a possible withdrawal of the guilty plea, attorney Janet Zimmerman volunteered to represent Cardenas if she could have the services of a certified translator to help with privileged attorney-client communication. The county court permitted her general appearance but determined that it lacked authority to provide Cardenas and his pro bono counsel the services of an out-of-courtroom interpreter.
Rather, the county court ruled that the public defender's office is obligated to represent indigent persons; that the county court cannot make a determination of indigency independent of the public defender's office; that defendant cannot choose his counsel and then require the court to pay for that attorney; and there is no legal authority requiring the court to furnish interpreters or other experts to assist an attorney in making a determination whether the attorney will represent a potential client.
When attorney Zimmerman sought to confer with Cardenas in the courthouse hallway, the judicial district's administrator rebuked Zimmerman through a letter which stated that (emphasis in original letter).
The Majority opinion states that the trial court did not abuse its discretion in denying the services of an additional translator. See maj. op. at 623, 625. However, the county court did not reach the stage of exercising its discretion, because it ruled that it had no discretion to allow interpreter services at state expense, other than in-court translation. The record demonstrates that both the county court and the court administrator believed that courts lack such discretion. Because the applicable Chief Justice Directive permits the court to provide the additional interpreter at state expense, we should remand this case so that the county court may exercise its discretion under informed standards, allowing the county court to (1) determine...
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