State v. Vincent

• Decision Date: 21 October 1994
• Docket Number: No. 930030,930030
• Citation: 883 P.2d 278
• Parties: STATE of Utah, Plaintiff and Petitioner, v. Jeffrey Vere VINCENT, Defendant and Respondent.
• Court: Utah Supreme Court

Page 278

883 P.2d 278

STATE of Utah, Plaintiff and Petitioner, v. Jeffrey Vere VINCENT, Defendant and Respondent.

No. 930030.

Supreme Court of Utah.

Oct. 21, 1994.

Jan Graham, Atty. Gen., J. Frederic Voros, Jr., Asst. Atty. Gen., Salt Lake City, for plaintiff.

Joan C. Watt, Vernice S. Ah Ching, Salt Lake City, for defendant.

ZIMMERMAN, Chief Justice:

After an evidentiary hearing, the third district court found that Jeffrey Vere Vincent was not indigent under sections 77-32-1 and 78-56-8 of the Utah Code. It therefore denied Vincent's request for court-appointed counsel and a free transcript on appeal from his theft conviction. The court of appeals reversed, finding that Vincent was indigent. State v. Vincent, 845 P.2d 254, 263 (Utah Ct.App.1992). We granted the State's petition for a writ of certiorari to address the court of appeals' approach to indigency determinations. 857 P.2d 948 (Utah 1993). We reverse the court of appeals and reinstate the trial court's ruling.

In July of 1989, the State charged Vincent with one count of theft in violation of section 76-6-404 of the Code. Vincent moved to quash the bindover order, contending that the magistrate had bound him over for trial in violation of State v. Brickey, 714 P.2d 644 (Utah 1986). ¹ After the trial court denied the motion to quash and the court of appeals refused to hear the matter on interlocutory appeal, Vincent entered a conditional plea of guilty, reserving the right to withdraw that plea should he prevail on appeal. See State v. Sery, 758 P.2d 935, 938-39 (Utah Ct.App.1988); see also State v. Mabe, 864 P.2d 890, 892 (Utah 1993).

Vincent then filed a notice of appeal, challenging the trial court's denial of the motion to quash the bindover order. He also filed an affidavit of impecuniosity, asking the trial court to order Salt Lake County to bear the costs of the appeal. The trial court refused to sign an order to that effect. Vincent filed a second affidavit on March 20, 1991. The trial court ordered that affidavit stricken after Vincent failed to appear in court. Vincent filed a third affidavit of impecuniosity, this time with the court of appeals, on July 19, 1991. The court of appeals temporarily remanded the case to the trial court to determine if Vincent was indigent. It also ordered that Vincent's substantive appeal be stayed pending the indigency determination.

The trial court held an indigency hearing in September of 1991. At the hearing, Vincent testified that he had worked for the previous eight months at Minit Lube but had quit shortly before the hearing. During his employment at Minit Lube, Vincent earned approximately $6 per hour and worked between thirty-six and forty hours a week.

Some time prior to the impecuniosity hearing, Vincent moved into an apartment with his ex-wife and their two children. At the time of the hearing, their combined monthly bills consisted of the following: rent, $340; car payment, $50 (against a loan balance of $1100); gas and electric bills, $234; food, $200; and gasoline, $150. They also had been paying $350 to $400 per month for child care during the period when both worked. In addition to the combined bills, Vincent was required to pay $75 per month on his criminal fines. He also owed over $6000 to the Office of Recovery Services for child support which accrued prior to the time he reunited with his family.

Less than one week before the impecuniosity hearing, Vincent voluntarily terminated his employment with Minit Lube. He made no immediate effort to secure other employment. At the time of the hearing, he was caring for his two children, obviating the need for paid child care. His ex-wife's income was the sole source of the family's support. She was earning a net monthly salary of approximately $1000.

The trial court determined that Vincent was not indigent. In making this determination, the court noted that at the time of sentencing, Vincent established that he had a history of stable and regular employment and was, in fact, employed at that time. At the time of the indigency hearing, however, Vincent had quit his job and remained unemployed by choice. Furthermore, the court found that Vincent was being supported by his ex-wife, who worked full-time. Finally the trial court noted that inconsistencies in Vincent's testimony concerning his work history cast doubt on his credibility. In light of these findings, the court concluded that Vincent had failed to carry the burden of establishing his impecuniosity.

Vincent appealed, and the court of appeals reversed. ² Vincent, 845 P.2d at 263. It held that the trial court had properly imputed income to Vincent and had properly considered the income of Vincent's ex-wife in determining whether Vincent was indigent. Id. Nevertheless, the court of appeals held that "even considering these factors, it is apparent that [Vincent] is still 'reasonably unable to bear the costs of the action.' " Id. (quoting Kelsey v. Hanson, 818 P.2d 590, 592 (Utah Ct.App.1991) (per curiam)).

The court of appeals began with a discussion of the standard of review. Relying on our decision in State v. Ramirez, 817 P.2d 774 (Utah 1991), Vincent argued that although the court of appeals should review the trial court's factual findings for clear error, the legal conclusion founded upon those facts--the conclusion as to his indigency or lack thereof--was a legal conclusion to be reviewed for correctness. The court of appeals did not directly address this contention. Instead, it noted that, including the standard advocated by Vincent, there are four recognized standards by which appellate courts review trial court determinations of indigency. ³ Vincent, 845 P.2d at 257-58. In the process of surveying the various standards of review, a majority of the panel disregarded an apparent conflict between the standard we stated in Webster v. Jones, 587 P.2d 528, 530 (Utah 1978), and the standard adopted by the court of appeals in Kelsey v. Hanson, 818 P.2d 590, 591 (Utah Ct.App.1991). The majority indicated that a detailed analysis of the issue was unnecessary because the trial court's decision must be reversed under any standard. Vincent, 845 P.2d at 258.

According to the court of appeals' majority, the trial court had appropriately considered the income of Vincent's ex-wife and had properly imputed to Vincent income from the job that he had quit just prior to the indigency hearing. Id. at 260-62. The majority went on, however, to take judicial notice of additional facts and, in light of those facts, concluded that Vincent was indigent. Id. at 262-63. This approach deserves further discussion.

The majority examined the evidentiary facts regarding Vincent's living expenses, including "facts" for which Vincent had adduced no record evidence. These judicially noticed facts pertained to the ordinary costs of living for a household with two adults and several children, including costs for medical care, dental care, and clothing. Taking these noticed facts into account, the court of appeals concluded that it "would be unreasonable to assume [Vincent] could afford" to pay counsel and still meet his living expenses. Id. Therefore, the court held that Vincent was indigent and ordered that he be provided with court-appointed counsel and a transcript at county expense. ⁴

Id. at 263.

The State sought a writ of certiorari, claiming that the court of appeals erred in two important respects: (i) it failed to apply the proper standard of review; and (ii) it erred by reversing the trial court on the basis of "facts" not in the record. We granted the writ, and the matter is now before us.

We first address the appropriate standard of review for indigency determinations. Although we are puzzled by the court of appeals' failure to even discuss Webster, we find the State's reliance on that case a bit misplaced. In Webster, this court stated:

Whether [an accused] is able to employ his own counsel is a question of fact to be determined by the court.... When the court has made such a determination, it is entitled to the same presumptions of correctness as other findings and determinations made by the court and the burden is upon the one attacking it to show that it was in error.

587 P.2d at 530 (footnote omitted). Although the State reads this statement to say that an indigency determination is factual, it is unclear from the opinion whether the court was focusing on the standard of review applicable to the ultimate legal question of whether a given set of facts constitutes a showing of legal indigency, or was instead focusing on the standard for reviewing the factual findings upon which that conclusion is grounded. Webster 's discussion of the standard of review, quoted in its entirety above, lacks the depth and precision necessary to permit us to conclude that the court had this distinction in mind, much less that it was addressing it.

It is not surprising that Webster is not sufficient to answer the standard-of-review question before us. As we have recently noted, clear enunciation of standards of review has not always been a matter of great import to this court, especially in the area of so-called mixed questions of law and fact. State v. Thurman, 846 P.2d 1256, 1268-69 (Utah 1993). Not until the creation of the court of appeals has the need for consistency in standards of review become obvious. See id.; State v. Pena, 869 P.2d 932, 935 (Utah 1994). Webster is representative of the period before the creation of the court of appeals, when the articulation of standards of review was of less importance because there was only one court to which they were addressed--this one. See Thurman, 846 P.2d at 1268.

For the reasons set out above, we do not view Webster as an obstacle to the application of the overarching principles articulated in our more recent standard-of-review cases, including Ramirez, Thurman, and Pena. Despite the State's suggestions to the contrary, these cases are not fundamental...