State v. Ferris
| Decision Date | 12 December 1995 |
| Docket Number | No. C8-95-1546,C8-95-1546 |
| Citation | 540 N.W.2d 891 |
| Parties | STATE of Minnesota, Respondent, v. David Eugene FERRIS, Appellant. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
A defendant who has income or assets greater than the guidelines for a presumption of indigency who requests the appointment of a public defender is entitled to a determination pursuant to Minn.R.Crim.P. 5.02 on whether obtaining private counsel would be a substantial hardship for the defendant or the defendant's family.
Hubert H. Humphrey, III, Attorney General, St. Paul, Douglas L. Ruth, Owatonna, for Respondent.
Lawrence W. Pry, Assistant State Public Defender, St. Paul, for Appellant.
Considered and decided by RANDALL, P.J., and SHORT and PETERSON, JJ.
David Ferris argues the district court violated his right to counsel when it denied his request for court-appointed counsel during a probation revocation hearing without making a determination that he could obtain representation without substantial hardship. We reverse and remand.
Ferris was charged with gross misdemeanor driving under the influence pursuant to Minn.Stat. § 169.121, subds. 1(a), 3(c)(1) (1994) and gross misdemeanor refusal to submit to testing pursuant to Minn.Stat. § 169.121, subds. 1a, 3(c)(1) (1994). Ferris entered a negotiated guilty plea to gross misdemeanor driving under the influence.
The district court sentenced Ferris to serve one year in jail and to pay a $900 fine. The court stayed all but sixty days of the jail sentence and placed Ferris on three years probation. The district court placed conditions on the probation, and in addition to paying various fines and taxes, Ferris had to refrain from using alcohol, avoid contact with bars or liquor stores, submit to random testing by court services, and not re-offend.
On March 9, 1995, the Director of Steele County Court Services, Jerry Peterson, informed the court that Ferris admitted drinking, in violation of the probation conditions. The court signed an order to show cause, and directed Ferris to appear before the court on March 20, 1995.
On March 20, Ferris appeared before the court. The court advised Ferris of his right to counsel and that if he could not afford to hire an attorney, he would be provided with a court-appointed attorney. Ferris requested a public defender.
Ferris submitted a document titled affidavit of indigency. The affidavit listed his weekly income as $320. It showed he was single with no dependents. The affidavit listed no cash on hand and no other assets. It also listed total indebtedness of $3389.28 and monthly rent of $335.
After verifying the information contained in the affidavit with Ferris, the court stated, The district court made no findings on the record regarding Ferris's ability to obtain representation without substantial hardship, and released Ferris on his own recognizance pending a hearing on March 27, 1995, at which time Ferris was to appear with a private attorney.
On March 27, Ferris appeared in court without an attorney. He requested more time to hire an attorney, and stated he was having trouble finding an attorney "because of the financial aspects." Ferris stated he had contacted three attorneys. One of the attorneys even wrote to the county attorney indicating Ferris was indigent. None of the three would accept Ferris as a client because he was simply unable to even pay modest fees. The court again released Ferris on his own recognizance and stated:
Well, I am going to enter a denial on this matter and we'll send you a notice for a date and time for hearing on the alleged violations and it will be up to you to either have counsel on board by the date that hearing is set or to be prepared to represent yourself at the hearing.
The court originally scheduled the revocation hearing for May 15, 1995, but because Jerry Peterson, the Director of Steele County Court Services, was unavailable at that time, it was moved up to April 19, 1995.
At the April 19 hearing, the court informed Ferris of his right to be represented by court-appointed counsel if he could not afford to hire private counsel. The court then asked the prosecutor if the actual revocation hearing was set for that day. The prosecutor explained why the hearing had been moved to April 19. The prosecutor stated that the matter had already been before the court on two previous dates, and that the court had denied Ferris's request for a public defender and ordered him to appear with private counsel or proceed pro se. When the prosecutor stated she was prepared to proceed with the hearing, the following exchange took place:
The only indication in the record of what was the basis for the court's finding came at the end of the hearing, where the court stated Should you lose your job over this or something like that, that would change your income circumstances, Mr. Ferris, you can reapply to the court for the court-appointed counsel at that time but with an income of $320 a week, you exceed by almost double what the maximum guideline is for court-appointed attorney.
At the hearing, Jerry Peterson testified Ferris admitted in writing that he was drinking on March 9, 1995, a violation of the terms of probation. Ferris did not testify. The court found Ferris in violation of probation, revoked the original stay, and ordered Ferris to serve one year in jail with six months of that time stayed, and ordered him to pay a $900 fine with a $135 surcharge. This appeal followed.
Ferris filed his appellant's brief on July 19, 1995. The state did not timely file its respondent's brief, and this court ordered that the case proceed pursuant to Minn.R.Civ.App.P. 142.03 ().
Did the district court violate Ferris's right to counsel when it denied his request for court-appointed counsel at his probation revocation hearing without specifically finding that he could obtain representation without substantial hardship?
The Sixth Amendment right to counsel attaches at every critical stage of the prosecution. United States v. Wade, 388 U.S. 218, 224, 87 S.Ct. 1926, 1931, 18 L.Ed.2d 1149 (1967). This requirement applies to the states via the Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 339-45, 83 S.Ct. 792, 793-97, 9 L.Ed.2d 799 (1963).
The U.S. Supreme Court has held that counsel had to be appointed at a "combined sentencing" and probation revocation hearing. Mempa v. Rhay, 389 U.S. 128, 135-37, 88 S.Ct. 254, 257-58, 19 L.Ed.2d 336 (1967), accord U.S. v. Gras, 446 F.2d 7, 9 (5th Cir.1971) (). The Minnesota legislature has provided that a defendant is entitled to representation at a probation revocation hearing. Minn.Stat. § 609.14, subd. 2 (1994).
With respect to cases involving felonies and gross misdemeanors, Minn.R.Crim.P. 5.02, provides:
Subd. 1. Felonies and Gross Misdemeanors. If the defendant is not represented by counsel and is financially unable to afford counsel, the judge or judicial officer shall appoint counsel for the defendant.
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Subd. 3. Standard of Indigency. A defendant is financially unable to obtain counsel if financially unable to obtain adequate representation without substantial hardship for the defendant or the defendant's family.
Subd. 4. Financial Inquiry. An inquiry to determine financial eligibility of a defendant for the appointment of counsel shall be made whenever possible prior to the court appearance and by such persons as the court may direct. This inquiry may be combined with the pre-release investigation provided for in Rule 6.02, subd. 3.
Subd. 5. Partial Eligibility and Reimbursement. The ability to pay part of the cost of adequate representation at any time while the charges are pending against a defendant shall not preclude the appointment of counsel for the defendant. The court may require a defendant, to the extent able, to compensate the governmental unit charged with paying the expense of appointed counsel.
The comments to rule 5.02 give guidance to the district courts in determining whether a defendant is sufficiently indigent to require the appointment of counsel. The comment provides:
Rule 5.02, subd. 3 prescribes the standard to be applied by the court in determining whether a defendant is sufficiently indigent to require the appointment of counsel. This standard is taken from ABA Standards, Providing Defense Services, 6.1 (Approved Draft, 1968).
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(1) A defendant will be presumed to be financially unable to afford counsel if:
(d) the defendant's current weekly net income and that of the defendant's spouse do not exceed sixty times the federal minimum hourly wage as prescribed by federal...
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...revocation. Even in the probation-revocation process, defendants have the right to be represented by an attorney. State v. Ferris, 540 N.W.2d 891, 893 (Minn. App. 1995). And although the right to counsel is a constitutional requirement, it can be surrendered in three ways: (1) waiver, (2) w......
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State v. Jones, No. A07-1168.
...particular financial situation and made the appropriate conclusions about the lack of hardship for appellant. Cf. State v. Ferris, 540 N.W.2d 891, 895 (Minn.App.1995). Even assuming arguendo that the district court improperly denied appellant's first request for a public defender, the prope......
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...(Minn. Feb. 24, 1999). Specifically, "a defendant is entitled to representation at a probation revocation hearing." State v. Ferris, 540 N.W.2d 891, 893 (Minn.App.1995); see State v. Balma, 549 N.W.2d 102, 104-05 (Minn.App.1996) (reaffirming existence of right to counsel in probation revoca......
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... ... entitled to counsel or other procedural protections ... "[A] ... defendant is entitled to representation at a probation ... revocation hearing." State v. Kouba , 709 N.W.2d ... 299, 304 (Minn.App. 2006) (quoting State v. Ferris , ... 540 N.W.2d 891, 893 (Minn.App. 1995)); see Minn ... Stat. § 609.14, subd. 2 (2020) (a "defendant is ... entitled to be heard and to be represented by counsel" ... at a probation-revocation hearing); see also Minn ... R. Crim. P. 27.04, subd. 2(1)(c) ... ...
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