Schmidt v. Uhlenhopp
| Decision Date | 08 February 1966 |
| Docket Number | No. 52025,52025 |
| Citation | 258 Iowa 771,140 N.W.2d 118 |
| Parties | David Joseph SCHMIDT, Petitioner, v. Harvey UHLENHOPP, Judge, District Court of Story County, Nevada, Respondent. |
| Court | Iowa Supreme Court |
Paul D. Lunde, Ames, for petitioner.
Charles E. Vanderbur, County Atty., Ames, for respondent.
We granted certiorari under rules 306-319, Rules of Civil Procedure, to review orders of respondent judge refusing to appoint counsel at public expense for petitioner, charged with a felony. We must sustain the writ and annul the orders.
Petitioner was charged with the crime of assault with intent to inflict great bodily injury in violation of section 694.6, Code, 1962. When he appeared in municipal court in response to the preliminary information he asked that an attorney be appointed to represent him, evidently on the ground he was unable to employ any. The request was granted and Paul D. Lunde was appointed. A preliminary hearing was held and petitioner was bound over to await the action of the grand jury or the filing of a county attorney's information Bond was fixed at $10,000.
A week later Mr. Lunde filed in the district court a motion to reduce the amount of bail and obtained an order for hearing thereon. On October 1, 1965, C. A. Smedal, a well known attorney, appeared for petitioner and also filed a motion to reduce bail. Petitioner's mother had employed Mr. Smedal. Hearing was held on the question of reducing bail and on the same day it was reduced to $2500. Mr. Smedal acted for petitioner at this hearing. Petitioner's mother deposited $2500 with the clerk of court which was accepted as bail and petitioner was released from the jail.
On October 5, 1965, a county attorney's information was filed charging petitioner with assault with intent to inflict great bodily injury in violation of Code section 694.6. Petitioner appeared with Mr. Smedal, waived arraignment and pleaded not guilty. Trial was set for November 3. On November 1 Mr. Smedal withdrew as attorney for petitioner because of disagreement with him over defense of the charge and inability or unwillingness of his mother to pay Mr. Smedal's fee.
Mr. Lunde (the attorney who represented petitioner by appointment at the preliminary hearing) then asked the district court, at petitioner's request, to appoint him or some other attorney to further represent petitioner at public expense. A hearing was held on this request at which Mr. Lunde and the county attorney each made statements and petitioner was questioned by Mr. Lunde and the court.
At the conclusion of the hearing the court announced it did not find petitioner was genuinely indigent, that since he was free on bail he could try to retain counsel, with authority from the court to state to him that if petitioner was acquitted counsel must look to him or his mother for his pay, but if he was convicted and confined so he could not work the court would see that counsel was paid from public funds.
The court's ruling was placed on three grounds. First, petitioner was 25, a high school graduate, able-bodied, unmarried, with no dependents, in a time of prosperity. Second, petitioner's mother retained private counsel for him once and petitioner now claims he cannot pay another. Third, petitioner's mother deposited $2500 as bail to obtain his release from jail.
Two days after the above ruling was made Mr. Lunde petitioned the court for reconsideration thereof, requesting it to rule that petitioner is or is not indigent and entitled to have Mr. Lunde or some other attorney appointed to defend the case. This petition asserted the first ruling placed Mr. Lunde in an awkward position ethically in that if petitioner were convicted and confined his pay would be assured, but if he were acquitted Mr. Lunde must look to a client without funds therefor.
In response to this petition the court ruled petitioner was not indigent and assignment of counsel at public expense was refused.
At the hearing preceding the first ruling it appeared petitioner had been released from the reformatory, on a conviction for drunken driving (O.M.V.I.), about two months earlier, he had $10 and the clothes he was wearing and no automobile or other property. He was then picking corn for an uncle at $1.25 an hour and expected to 'get in' between 40 and 50 hours that week. He had had a few others jobs such as washing dishes but they were of short duration.
It also appeared petitioner's mother had paid $52.50 for a transcript of the testimony at the preliminary hearing in municipal court but petitioner had done some remodeling work on an apartment she owned to repay her for this expenditure. Further, that when Mr. Smedal was employed the mother expected to get work which she did not get. Petitioner said he did not feel he had a right to call upon his mother to pay for his defense.
I. There can be no doubt petitioner was entitled to have counsel appointed to assist in his defense if he was unable to employ any.
So far as applicable, Amendment 6 to the Federal Constitution provides, 'In all criminal prosecutions, the accused shall * * * have the Assistance of Counsel for his defence.' This provision is applicable to the states through the due process clause of Amendment 14. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799. See also Douglas v. People of State of California, 372 U.S. 353, 83 S.Ct. 814, 9 L.Ed.2d 811.
Article I, section 10, Iowa Constitution, contains a provision similar to that in Amendment 6, supra. See also Korf v. Jasper County, 132 Iowa 682, 685, 108 N.W. 1031.
Section 775.4, Iowa Code 1962, provides: * * *.' Korf v. Jasper County, supra, at page 686 of 132 Iowa, at page 1033 of 108 N.W.
Code section 775.5, as enacted in 1965 by chapter 449 of the Sixty-first General Assembly, as far as now pertinent, states: 'An attorney appointed by the court to defend any person charged with a crime in this state shall be entitled to a reasonable compensation to be decided in each case by the court, including such sum or sums as the court may determine are necessary for investigation in the interests of justice * * *' (from page 847, Laws 61st G.A.).
II. The question for the trial court to decide here was whether petitioner was unable to employ counsel. Ability to employ counsel fairly implies ability to pay him reasonable compensation. As the trial court recognized and as Code section 775.5, supra, contemplates, an attorney should not be expected to defend an accused gratuitously.
It was proper for the court to require a reasonable showing that petitioner was unable to employ counsel. 23 C.J.S. Criminal Law (1961), § 982(4), pages 959, 960. This is especially true in view of the fact a 'private' attorney had appeared for him for a month and petitioner was released on a fairly large cash deposit accepted as bail. We think it must be held petitioner made a strong showing he was unable to employ and pay counsel and the decision under review was illegal within the meaning of rules 306-319, R.C.P.
The trial court's order appears to be largely based on his opinion petitioner ought to be able to employ and pay counsel, especially if trial resulted in his acquittal. We deem this insufficient basis for refusal to appoint counsel. As indicated, we think the question was whether petitioner was unable to employ counsel, not whether he ought to be able to do so. Many people do not live up to their capabilities, especially those like petitioner who has been in trouble with 'the law' for several years and was only recently released from the reformatory.
Some of our decisions involving the right of a defendant in a criminal case who has appealed from his conviction to a transcript of the evidence at county expense support the view just expressed. What is now Code section 793.8 provides that if a convicted defendant who has appealed 'shall satisfy a judge * * * that he is unable to pay for a transcript of the evidence, such judge may order the same made at the expense of the county * * *.'
This statute closely resembles section 775.4, ...
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