State v. Jensen

• Decision Date: 20 April 1978
• Docket Number: Cr. N
• Parties: STATE of North Dakota, Respondent, v. Herbert O. JENSEN, Petitioner. o. 554-B.
• Court: North Dakota Supreme Court

Page 691

265 N.W.2d 691

STATE of North Dakota, Respondent, v. Herbert O. JENSEN, Petitioner.

Cr. No. 554-B.

Supreme Court of North Dakota.

April 20, 1978.

Calvin N. Rolfson, Deputy Atty. Gen., State of North Dakota, State Capitol, Bismarck, for respondent.

Irvin B. Nodland, Bismarck, for petitioner; argued by Herbert O. Jensen, pro se.

ERICKSTAD, Chief Justice.

This is the third time we have considered matters involving Herbert O. Jensen. In the first case, after Jensen was convicted of two counts of murder in the second degree, prior to a hearing on the merits of his appeal we heard a motion in this court which asked us to find him indigent and order payment by the county of his attorneys' fees and expenses of appeal. That motion was denied in State v. Jensen, 241 N.W.2d 557 (N.D.1976). Thereafter, we heard his appeal on the merits and granted him a new trial. See State v. Jensen, 251 N.W.2d 182 (N.D.1977). In the new trial, Jensen was again found guilty of two counts of murder in the second degree, and sentenced on each count to 30 years in the State Penitentiary less credit for 61 days served in the Law Enforcement Center at Devils Lake and at the State Hospital. The sentences run concurrently.

As of the 8th day of December, 1977, Jensen appealed from both verdicts and both judgments. The appeal on the merits is not before us at this time. What is before us is a petition asking us to declare Jensen indigent, appoint counsel to represent him for all appeal purposes, and order a complete transcript of all proceedings held in conjunction with the retrial, all to be paid for by the county. A motion quite similar to this petition was filed with the district court, heard by the court and denied. On setting the petition for hearing in our court, we requested that the record in the district court be transmitted to our court, authorized additional evidence to be submitted in our court through the means of affidavits, and directed the county to secure the transcript of the indigency hearing for filing with this court. Affidavits were filed by both the State and Jensen at the hearing in our court. The State was represented by Mr. Calvin Rolfson, the First Assistant Attorney General in the criminal division, and Mr. Jensen appeared and spoke in his own behalf. Present also at Jensen's request was attorney Irvin B. Nodland who spoke briefly in explanation for his unwillingness to advance funds for the transcript or for his services and other costs in conjunction with the appeal in light of Jensen's present indebtedness to him in the sum of approximately $2,500 for previous legal services.

In the hearing before the district court on the motion, and in our court on the petition, the issue has been one of indigency. In determining that issue, Jensen's assets, liabilities, and income have been analyzed. In conjunction therewith, the State implies that Jensen has conveyed certain property to a friend and others for less than full value in light of the inflation which has taken place. From the State's view, Jensen has conveyed away his property to create the appearance of indigency, whereas from Jensen's view he has conveyed away his property to secure funds to pay attorneys' fees and costs in the original trial, the appeal, and the new trial.

Peculiarly, Jensen has not alleged that he has a meritorious claim on appeal, nor has the State contended that his appeal is frivolous. We will not assume the appeal to be frivolous, but rather will apply the caution urged by Ronald P. Sokol in his book, Federal Habeas Corpus, Section 26 at pp. 195-196 (2d ed. 1969).

"The utmost caution should naturally be exercised in dismissing a case as frivolous. If the least bit of doubt exists, it must be resolved in the petitioner's favor. . . .

"In this regard the test employed by the Ninth Circuit is a good one:

It is frivolous only if the applicant can make no rational argument on the law or facts in support of his claim for relief.

It may well be that there are arguments that can be made on behalf of the petitioner that are well beyond the law's existing frontier but well within the frontier of rationality. Only when the frontier of the latter is passed does the case become frivolous."

In proceedings in forma pauperis under federal law, one must state in his affidavit that he is unable to pay costs or give security therefor, and, in addition thereto, state the nature of the defense or appeal and affiant's belief that he is entitled to redress. ¹ The court may dismiss the case if the allegation of poverty is untrue, or if satisfied that the action is frivolous or malicious. ² Rule 44 of the Federal Rules of Criminal Procedure and Title 18, U.S.C.A., Section 3006A, subsection (b) relate to appointment of counsel in criminal cases under the federal law when a defendant is charged with a felony or misdemeanor, other than a petty offense. ³

In a rather recent decision rising out of this State in the federal court, the United States Court of Appeals for the Eighth Circuit said that the procedure to be followed where a complaint is filed in federal court along with a motion for leave to proceed in forma pauperis is directed to the sound discretion of the trial court. Forester v. California Adult Authority, 510 F.2d 58, 60 (8th Cir. 1975). In that case, an inmate at the North Dakota State Penitentiary brought a civil rights action in federal court against the California Adult Authority. In sustaining the district court's dismissal of the complaint, the court of appeals said that its review was limited to determining whether the district court's conduct in dismissing the action constituted an abuse of judicial discretion.

Although we may not have previously stated such a view, we think that henceforth our review should be similarly limited to determining whether the district court, in denying a petition for appointment of counsel and for the cost of securing transcripts and other costs on appeal, abused its judicial discretion.

In Jensen's previous motion in our court for the payment of his attorneys' fees and expenses of appeal by the county in conjunction with his first convictions and appeal to this court, we recognized as a basis for his motion, Section 13 of the Constitution of North Dakota, and Rule 44 of the North Dakota Rules of Criminal Procedure. ⁴

In that case, we adopted from Chapter 2 of the Guidelines of the Administrative Office of the United States Courts, standards to be followed in the future to determine eligibility for the payment of attorneys' fees and costs out of public funds. State v. Jensen, 241 N.W.2d 557, 561 (N.D.1976). We said that the question before us was whether Jensen was "indigent" within the meaning of Rule 44. We think that is generally the only issue in cases such as this. However, it is interesting to note that the United States Court of Appeals for the Seventh Circuit has held that under Rule 44 of the Federal Rules of Criminal Procedure and the Criminal Justice Act of 1964 (18 U.S.C. § 3006A(b, c)), that the test is not indigency but is rather whether the defendant is "financially unable" to obtain counsel. United States v. Kelly, 467 F.2d 262, 266 (7th Cir. 1972), cert. denied, 411 U.S. 933, 93 S.Ct. 1905, 36 L.Ed.2d 393 (1973).

In that case, Kelly, an attorney, was charged with using the mails to defraud. He contended that he was unable to obtain counsel to represent him in his defense, notwithstanding he owned 10,000 shares of stock in a California corporation that he could not liquidate because of SEC rules. The circuit court found no abuse of discretion in the trial court's refusal to appoint counsel at State expense, not because of the shares of stock which he had difficulty liquidating, but because of Kelly's lateness in seeking assigned counsel, his vagueness about his ability to retain counsel, and because he was sufficiently capable and alert to conduct his defense pro se.

It should be noted here that our Rule 44 differs from the federal rule in that our rule speaks of "every indigent defendant", whereas Rule 44 of the Federal Rules of Criminal Procedure speaks of every defendant who "is unable to obtain counsel". It may be that because of the peculiarities of this case that we may have to look beyond the issue of indigency to the petitioner's ability to obtain counsel in order to afford him his equal protection and due process rights under the Fourteenth Amendment to the United States Constitution and Section 13 of the North Dakota Constitution. ⁵ See for principle involved, irrespective of disposition of the case: Colunga v. State, 527 S.W.2d 285 (Tex.Cr.App.1975); Cunningham v. State, 484 S.W.2d 906 (Tex.Cr.App.1972); State ex rel. Mastrian v. Tahash, 277 Minn. 309, 152 N.W.2d 786 (1967).

Let us examine the peculiarities of this case which may justify the assignment of counsel and the payment of the cost of the transcript at public expense, notwithstanding the petitioner may not be indigent.

Accepting at face value for purposes of discussion the affidavit which Jensen filed with our court on April 4, 1978, ⁶ we note that he asserts that his total assets are $1,275.43, that the total amount of his monthly income is $920, and that he has an outstanding indebtedness of $16,493.41. In determining his assets, Jensen has included an unimproved quarter section of land described as "that certain parcel of land registered under The Land Titles Act as Parcel 6922 in the Register for District of Fort William Freehold situate in the Township of Pardee in the District of Thunder Bay and Province of Ontario, namely: The south east quarter of Section Thirteen (13) in the First (1) Concession of the said Township of Pardee, containing by admeasurement One hundred and Sixty (160) acres, be the same more or less", which he estimates to be of the value of $1,120, the purchase price of the property. Among the debts he has included a loan from the Veterans Administration of $4,505.23, a loan...