State v. Superior Court In and For Pima County
| Decision Date | 12 January 1966 |
| Docket Number | CA-CIV |
| Citation | 409 P.2d 750,2 Ariz.App. 466 |
| Parties | The STATE of Arizona and Pima County, State of Arizona, Petitioners, v. The SUPERIOR COURT IN AND FOR the COUNTY OF PIMA, State of Arizona, and the Honorable John P. Collins, Judge of the Superior Court, Division One, In and For the County of Pima, Respondents. 2142. |
| Court | Arizona Court of Appeals |
Review Denied Fed. 23, 1966.
Norman E. Green, County Atty., Pima County, Tucson, Horton C. Weiss, Deputy County Atty., for petitioners.
Leslie J. Gilbertson, Tucson, for respondents.
Sidney Weissberger, Tucson, for Pima County Bar Ass'n, amicus curiae.
By petition for a writ of certiorari this court has been asked to determine whether the superior court acted within its jurisdiction in awarding compensation to an attorney appointed to defend an indigent defendant in a criminal proceeding where the determination of indigency and appointment of counsel occurred at the time when the attorney withdrew from the defense after a trial had resulted in a mistrial and further, whether the superior court exceeded its jurisdiction in awarding to the attorney an amount of money as compensation for 'expenses' incurred in the defense of the indigent, including the services of an expert witness.
At the time of his withdrawal, defendant's counsel requested compensation in the amount of $1,231.96 for various 'expenses' incurred: the services of a handwriting expert, a copy of the trial transcript, process server, jury service, long distance telephone calls, and registered mail. In addition, reasonable attorney's fees were sought. The lower court ordered Pima county to pay to Mr. Morgan the sum of $1,531.96 and made the following minute entry:
'It is the finding and opinion of the Court that:
'1. The accused indigent Zora Shaw [defendant] was entitled to 'Effective' Counsel at the expense of the County '2. 'Effective' Counsel includes, 'reasonable sums necessarily expended' by Counsel in preparation of trial and during the trial in addition to reasonable compensation allowed to counsel;
'3. Notwithstanding that 'better practice' would suggest prior Court approval of all such proposed expenditures, nevertheless in the instant case a sum not less than $631.96 was and is reasonable as and for 'reasonable sums necessarily expended' as aforesaid;
'4. The sum of $900.00 was and is reasonable as and for legal services rendered, considering the services performed;
'Therefore, the Clerk is hereby directed and ordered to forthwith prepare the customary order for payment of Counsel not inconsistant with the foregoing.'
The county now seeks, by certiorari, to prevent payment of the above sums, contending that the awards were in excess of the jurisdiction of the superior court, since the appointment and payment were not authorized by the Constitution or statutes of Arizona. Respondents maintain that the actions of the superior court were within its inherent and/or statutory power, and that such a conclusion is necessary to carry into effect the mandates of the United States Constitution as indicated by recent ceses of the United States Supreme Court, especially Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), and Griffin v. People of State of Illinois, 351 U.S. 12, 76 S.Ct. 585, 100 L.Ed. 891 (1956).
There can be no question of the right of indigent defendants to the assistance of counsel in criminal prosecutions. State v. Anderson, 96 Ariz. 123, 392 P.2d 784 (1964); State v. Cuzick, 97 Ariz. 130, 397 P.2d 629 (1964). Concern with the subject matter is widespread and acute, and although the exact limits of such right have not clearly evolved, important indications are available. 1 But we are not presently concerned with the existence or nonexistence of the rights of indigents, it clearly appearing that the defendant below was adequately represented throughout. We begin, therefore, with the assumption that the superior court was not only authorized to appoint counsel to the defendant on a showing of indigency, but was required to do so. Ariz.Const. art. 2, § 24, A.R.S.; 17 A.R.S. Rules of Criminal Procedure, Rule 163; State v. Edwards, 1 Ariz.App. 42, 399 P.2d 176 (1965). Our concern is limited to whether an appointment made after legal services have been performed, to be retroactive to the rendering of such services, satisfies our law pertaining to the payment of attorney's fees at public expense.
Rule 163, Arizona Rules of Criminal Procedure, provides:
'Right to counsel on arraignment; duty and privilege of counsel; substitution of counsel; effect of failure to assign
(Emphasis added)
A.R.S. § 13-1673 requires that the attorney appointed for an indigent defendant be paid at county expense, and it contains no express limitation as to when the appointment must be made. We believe that Rule 163 clearly provides for the appointment of counsel both before arraignment and subsequent thereto. There is no express limitation that the appointment be made before trial. There is obvious latitude for discretion in the trial court in making appointments under this rule.
The rule has for its primary purpose the preservation of the rights of indigent defendants and the implementation of relevant constitutional guarantees, not the safeguarding of attorneys' interests in compensation. The right to compensation, like most other rights, can be waived. If counsel has a client criminally charged who is indigent and if there is no effort made to bring this to the attention of the court but reliance is placed upon a private agreement for compensation, the necessary elements of waiver may be present. 56 Am.Jur. 113, Waiver § 12; 31 C.J.S. Estoppel § 61, p. 378. We believe that the rule in question requires that the status of indigency exist at the time the services are rendered, and that the mere failure to collect a debt owing for attorney's fees from a defendant who at the time of the incurring of the debt is a non-indigent would in no sense be good grounds for an order by the court under this rule.
Here, however, we are not given the benefit of knowing what facts may have prompted the court to exercise its discretion in awarding attorney's fees. The record discloses that there was a hearing before the trial court on May 19, 1965 on the subject of attorney's fees. We have been provided with no transcript of testimony taken at this hearing. In certiorari proceedings, the appellate court must presume that the lower court acted properly. 14 Am.Jur.2d 833, Certiorari § 69; 14 C.J.S. Certiorari § 196, p. 338. For all that is shown by this record, the failure to ask for attorney's fees on the basis of indigency at an earlier date may have been the result of a mistake not reasonably avoidable.
The statement is made in petitioners' legal memoranda, and denied in the respondents', that the defendant for whom attorney's fees are ordered was never put under oath to determine indigency. The rule in question requires that the defendant be placed under oath. But, again, the record fails to disclose any violation and we are therefore assuming that proper procedure was followed.
Under the circumstances of this case, we find that the order for attorney's fees was within the power and discretion of the lower court.
To support the order for the payment of expenses incurred, the respondents present three contentions: (1) that fundamental fairness, as required in provisions of both federal and state constitutions, require that the state pay these expenses for an indigent defendant, (2) that A.R.S. § 13-1673 when it requires the county to pay for 'services' of counsel rendered to an indigent defendant should be so construed as to include the expenses incurred by counsel which are the subject of this proceeding, and (3) that the trial court had the inherent power to order the payment of the expenses in question.
In an opinion released this date, State of Arizona v. Superior Court, 2 CA-CIV 165, 2 Ariz.App. 458, 409 P.2d 742, this court has given its answer to the first contention insofar as the matter of expert witness fees are concerned.
However, in this case we have additional expenses claimed as follows:
TRIAL TRANSCRIPT (James Bouley)
Testimony 3/18 and 3/19/65-- $369.25
3/23 and 3/24/65-- 297.50 $666.75
------------------
PROCESS SERVER for service of subpoenas on witnesses-- 72.85
JURY SERVICE-- 15.00
LONG DISTANCE CALLS-- 3.37
REGISTERED MAIL-- 1.60
The amount claimed for employment of a handwriting expert was $472.39. The handwriting expert, while he apparently attended the trial, did not testify therein. The total thus claimed was $1,231.96. Of this, the court allowed...
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