State v. Hilgers, 20030169.

• Decision Date: 04 August 2004
• Docket Number: No. 20030169.,20030169.
• Citation: 2004 ND 160,685 N.W.2d 109
• Parties: STATE of North Dakota, Plaintiff and Appellee v. Douglas HILGERS, Defendant and Appellant.
• Court: North Dakota Supreme Court

685 N.W.2d 109

2004 ND 160

STATE of North Dakota, Plaintiff and Appellee v. Douglas HILGERS, Defendant and Appellant.

No. 20030169.

Supreme Court of North Dakota.

August 4, 2004.

Rehearing Denied September 15, 2004.

Douglas Hilgers, pro se, Duluth, MN, defendant and appellant; submitted on brief.

Robert P. Bennett, Assistant Attorney General, Bismarck, N.D., for plaintiff and appellee; submitted on brief.

NEUMANN, Justice.

[¶ 1] Douglas Hilgers appeals from a criminal judgment and sentence for the offense of removing or detaining a child in violation of a custody decree, a class C felony in violation of N.D.C.C. § 12.1-18-05. We affirm.

I

[¶ 2] Douglas Hilgers and Brenda Hilgers divorced in 1998. They have four children, one of whom is a minor. The trial court awarded Brenda Hilgers custody of the minor child, and awarded Douglas Hilgers visitation. Brenda Hilgers currently lives in Bottineau, North Dakota, and Douglas Hilgers lives in Duluth, Minnesota.

[¶ 3] In June 2001, Douglas Hilgers removed his minor child from Bottineau, North Dakota, and moved the child to his home in Duluth, Minnesota. Hilgers made several unsuccessful attempts to change custody in Minnesota. On September 13, 2001, the trial court issued an order for the immediate return of the child, subject to contempt and other sanctions, including criminal charges, if Hilgers failed to comply. Hilgers did not comply with the court's order, and a warrant was issued for his arrest. The minor child was eventually returned to his mother in late September 2001. Hilgers was subsequently arrested. Counsel was appointed at Hilgers' initial appearance, but that appointment was later withdrawn when the trial court found Hilgers was not indigent. A trial was held and the jury found Hilgers guilty of removing his minor child from the state in violation of the custody decree. Hilgers appeals, raising approximately thirty-one issues relating to his conviction. Among his numerous issues, Hilgers argues (1) the trial court erred in finding him ineligible for court-appointed counsel based on its finding he was not indigent; (2) the trial court erred in denying his request for a continuance; (3) the trial court erred in failing to issue all requested subpoenas; (4) the trial court erred in failing to issue his requested jury instructions; and (5) the trial court abused its discretion in the admission of testimony and evidence at trial.

II

A

[¶ 4] Hilgers argues the trial court erroneously determined he was not indigent, and therefore, did not qualify for court-appointed counsel at public expense. Hilgers argues he should have been granted counsel both during the trial and appellate stages of this case. We review a trial court's denial of appointment of counsel under an abuse of discretion standard. State v. DuPaul, 527 N.W.2d 238, 240 (N.D.1995).

An abuse of discretion by the trial court is never assumed, and the burden is on the party seeking relief to affirmatively establish it. A trial court abuses its discretion only when it acts in an arbitrary, unreasonable, or unconscionable manner, or when its decision is not the product of a rational mental process leading to a reasoned determination. The party seeking relief must show more than that the trial court made a "poor" decision, but that it positively abused the discretion it has under the rule.

Flattum-Riemers v. Flattum-Riemers, 2003 ND 70, ¶ 7, 660 N.W.2d 558 (citations omitted).

[¶ 5] "The Sixth Amendment of the United States Constitution, made applicable to the states through the Fourteenth Amendment, and Article I, § 12 of the North Dakota Constitution guarantee a criminal defendant effective assistance of counsel." Garcia v. State, 2004 ND 81, ¶ 5, 678 N.W.2d 568.

[¶ 6] North Dakota Rules of Criminal Procedure sets forth the right to appointed counsel:

Absent a knowing and intelligent waiver, every indigent defendant is entitled to have counsel appointed at public expense to represent the defendant at every stage of the proceedings from initial appearance ... through appeal in the courts of this state in all felony cases.

N.D.R.Crim.P. 44(a); DuPaul, 527 N.W.2d at 241.

[¶ 7] "There is no legal reason to appoint counsel for someone who can afford and obtain his own." DuPaul, 527 N.W.2d at 241. Before counsel will be appointed, a defendant has the burden of establishing he is indigent and qualifies for appointment of counsel. State v. Schneeweiss, 2001 ND 120, ¶ 10, 630 N.W.2d 482.

[¶ 8] On December 5, 2002, the trial court removed Hilgers' appointed counsel, finding Hilgers was not indigent "[b]ased on an income of $31,000 gross per year and [Hilgers'] claim that he transferred real estate to his children without consideration."

Hilgers contends the trial court erred in finding he had assets, in the form of real property in Wisconsin, that disqualified him from appointment of counsel. However, the trial court does not appear to have adjudicated Hilgers as indigent because he owns the property, as argued by Hilgers on appeal. Based on the record, it appears the trial court found Hilgers ineligible for counsel because he transferred the real property without receiving consideration, not because he owned or had an interest in the property. Clearly, Hilgers' own statements show that, at one time, he did own the property. Under our guidelines, the trial court, when determining indigency, should consider: "[a]ny indication of anticipatory transfer of assets by defendant to create the conditions for eligibility for defense services should be scrutinized and dealt with decisively." N.D. Legal Counsel for Indigent's Comm'n, N.D. Sup.Ct., Indigent Defense Procedures and Guidelines, Aug. 2002, at 1.2.

[¶ 9] Additionally, in his application for court-appointed counsel, Hilgers noted he earned approximately $31,000 per year. An individual with no dependents is eligible for indigent defense services if the annual gross income is at or below $11,075. N.D. Legal Counsel for Indigent's Comm'n, N.D. Sup.Ct., Indigent Defense Procedures and Guidelines, Aug. 2002, at 1.4. While Hilgers makes reference to his fiancee and several of his children as possible dependants in his application, Hilgers would only be eligible for services, under the guidelines, if there were at least seven persons in his household, based on his listed income of $31,000. Under the guidelines, a person with a household of seven persons is eligible if his annual gross income is at or below $34,175, while a person with a household of six persons is eligible for services if his annual gross income is at or below $30,325. At most, six persons reside in Hilgers' household. Therefore, he would not qualify under the suggested annual gross income of the guidelines.

[¶ 10] In Hilgers' Addendum to Application for Appointed Defense Services, dated December 5, 2002, he stated,

I own no real estate.... Mrs. Hilgers, herself, requested that the Wisconsin home be given over to the four children;... I concluded as well, that it was appropriate.... I regularly seek the children's input on their interests and intentions. Attempting, with the children's knowledge, to rent the property to put toward the tax debt....

We have reviewed the information before the trial court, specifically, Hilgers' own claim that he transferred the property to his children, Hilgers' allusion to the fact that he retained control over the property, documents showing tax payments, listed income, and other information contained in Hilgers' application. Because Hilgers did not meet his burden of proving indigency, we conclude the trial court did not abuse its discretion in determining Hilgers did not qualify for appointment of counsel during both the trial and appellate proceedings.

B

[¶ 11] Hilgers also raises several issues with regard to the indigency guidelines used by trial courts within this state. According to Hilgers, the criteria for establishing indigency are unpublished, available only to judges and counsel and, therefore, unavailable to him. He claims he is therefore unable to rebut the criteria set forth in the guidelines. Hilgers also questions, on appeal, "is this issue of `assets' the only criteria required to be evaluated in considering the assignment of appointed counsel, public or otherwise?"

[¶ 12] There is nothing in the record to indicate Hilgers requested access to the indigency guidelines. In addition, we fail to see how knowledge of the guidelines would have assisted Hilgers in meeting his burden of proving indigency. Hilgers presented all of his issues related to health, travel, occupation, and a number of other factors he believed create exceptional circumstances in his case to the trial court. Despite this information, the trial court still found Hilgers ineligible to receive indigent defense services.

[¶ 13] With regard to Hilgers' final issue regarding the criteria to be considered, the guidelines provide consideration should be given to, "(1) income resources; (2) non-income resources; (3) any extraordinary financial conditions that would prevent the defendant from hiring an attorney; and (4) estimated cost of defense services." Legal Counsel for Indigent's Comm'n, N.D. Sup.Ct., Indigent Defense Procedures and Guidelines, Aug. 2002, at 1.3. Additionally, the guidelines also provide a list of "Exceptional Factors," to be taken into consideration, stating that, "[a] defendant whose income resources or non-income resources exceed these guidelines may still be eligible to receive legal assistance." Guidelines, 1.7. These factors include, "age or physical infirmity of household members." Id.

C

[¶ 14] Hilgers argues his appointed counsel, later removed after the trial court determined Hilgers was not indigent, was "negligent/incompetent." Specifically, Hilgers argues his counsel failed to petition for review of the trial court's order removing him as counsel. Hilgers also argues appointed counsel was negligent, "having petitioned for:...