State v. Vincent, 910619-CA

CourtCourt of Appeals of Utah
Writing for the CourtORME; GARFF; JACKSON
Citation845 P.2d 254
PartiesSTATE of Utah, Plaintiff and Appellee, v. Jeffrey Vere VINCENT, Defendant and Appellant.
Docket NumberNo. 910619-CA,910619-CA
Decision Date18 December 1992

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

R. Paul Van Dam and J. Frederic Voros, Jr., Salt Lake City, for plaintiff and appellee.



ORME, Judge:

Appellant appeals from an order of the Third District Court ruling that appellant is not indigent or impecunious under Utah Code Ann. § 77-32-1 (1992) and Utah Code Ann. § 78-56-8 (1992), and therefore not entitled to court-appointed counsel or to have the county pay for the preparation of transcripts on appeal. We reverse.


The State charged appellant with one count of theft, a second degree felony, in violation of Utah Code Ann. § 76-6-404 (1990). Appellant eventually entered a conditional plea of guilty to theft, a class A misdemeanor, explicitly reserving his right to withdraw that plea should he prevail on appeal. See State v. Sery, 758 P.2d 935, 938-39 (Utah App.1988). In August of 1990, appellant was sentenced to one year in the Salt Lake County Jail. A fine of $625, restitution of $1,526, and partial recoupment of fees for court-appointed counsel in the amount of $150 were also imposed. The sentence was stayed, and appellant was placed on probation.

Shortly after his sentencing, appellant filed his Notice of Appeal from the trial court's denial of his motion to quash the magistrate's bindover order. In his motion, appellant claimed the State improperly refiled the information after a dismissal at the preliminary hearing stage of the case.

At the time the Notice of Appeal was filed, appellant executed an Affidavit of Impecuniosity. Thereafter, the trial judge refused to sign an order requiring Salt Lake County to bear the cost of preparing a transcript. 1 Appellant asked this court to determine he was indigent. We remanded the matter to the district court for a determination of impecuniosity

On September 22, 1991, the district court conducted an evidentiary hearing. At the hearing, appellant testified he had worked continuously for almost eight months at Minit Lube until shortly before the hearing. During his employment at Minit Lube, appellant earned approximately $6.00 per hour and worked between thirty-six and forty hours a week. Appellant netted approximately $105 per two-week pay period after deductions and garnishment for back child support. 2

Some time prior to the impecuniosity hearing, appellant, who had been divorced for three years, 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 $1,100); 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. Appellant is required to pay $75 per month on his fines. He also owes over $6,000 to the Office of Recovery Services for child support which accrued prior to the time the family was reunited. 3

Less than one week before the impecuniosity hearing, appellant, who at sentencing made much of his history of regular employment, voluntarily terminated his employment with Minit Lube. He made no immediate effort to secure other employment. At the time of the hearing, appellant was caring for his two children, thus obviating the need for paid child care. His ex-wife's income was the sole source of the family's support. Appellant's ex-wife was earning a gross monthly salary of approximately $1,400. Appellant testified, without contravention, that his ex-wife took home about $1,000 each month.

The trial court determined defendant was not indigent or impecunious and again denied appellant's motion for payment of the costs of his appeal. The court entered findings of fact and conclusions of law. Appellant appeals from that order. 4

Appellant contends the trial court erred in determining he is not indigent, thus violating his constitutional rights to due process and to counsel secured by the Fourteenth Amendment and the Sixth Amendment to the United States Constitution.


Every person charged with an offense which may be punished by imprisonment is entitled to the assistance of counsel. U.S. Const. amend. VI; Argersinger v. Hamlin, 407 U.S. 25, 37, 92 S.Ct. 2006, 2012, 32 L.Ed.2d 530 (1972); Webster v. Jones, 587 P.2d 528, 530 (Utah 1978). An indigent person charged with such a criminal offense has a right to appointed counsel at public expense. Gideon v. Wainwright, 372 U.S. 335, 342-45, 83 S.Ct. 792, 795-97, 9 L.Ed.2d 799 (1963). Both the Sixth Amendment to the United States Constitution and Article 1, section 12, of the Utah Constitution guaranty an indigent defendant the right to counsel. Webster, 587 P.2d at 530 & n. 1. This right attaches in misdemeanor cases where a deprivation of liberty may ensue, as well as in felony

cases. See Gideon, 372 U.S. at 344, 83 S.Ct. at 796 ("any person haled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him"); Argersinger, 407 U.S. at 37, 92 S.Ct. at 2012 ("absent a knowing and intelligent waiver, no person may be imprisoned for any offense, whether classified as petty, misdemeanor, or felony, unless he was represented by counsel at his trial")

Relatedly, "[i]n all criminal prosecutions, an accused has a constitutional right to a timely appeal from his conviction," State v. Johnson, 635 P.2d 36, 37 (Utah 1981), and, if indigent, has "a constitutional right to the appointment of counsel to assist in that appeal." Id. See Anders v. California, 386 U.S. 738, 741, 87 S.Ct. 1396, 1398-99, 18 L.Ed.2d 493 (1967); Douglas v. California, 372 U.S. 353, 355-58, 83 S.Ct. 814, 815-17, 9 L.Ed.2d 811 (1963).

The Utah Legislature has enacted comprehensive provisions concerning aid to indigent defendants. Utah Code Ann. § 77-32-2 (Supp.1992) 5 now provides, in pertinent part:

(1) Counsel shall be assigned to represent each indigent person who is under arrest for or charged with a crime in which there is a substantial probability that the penalty to be imposed is confinement in either jail or prison if:

(a) The defendant requests it; or

(b) The court on its own motion or otherwise so orders and the defendant does not affirmatively waive or reject on the record the opportunity to be represented. 6

Other statutory provisions provide that indigent defendants are entitled to court-appointed counsel on direct appeal and to have the government bear the cost of preparing a transcript. See Utah Code Ann. §§ 77-32-1, -5 (1990); Utah Code Ann. § 78-56-8 (1992).

The defendant has the initial burden of establishing the right to counsel or transcripts at public expense. People v. Nord, 790 P.2d 311, 316 (Colo.1990) (transcripts); Nikander v. District Court, 711 P.2d 1260, 1262 (Colo.1986) (counsel).


Appellant argues in this case that a correction of error standard should be employed. Appellant contends that while the trial court's factual findings underlying the conclusion as to whether an individual is indigent should be given deference, the ultimate conclusion as to indigency is a question of law. There is some support for this view. See, e.g., Barry v. Brower, 864 F.2d 294, 299 (3rd Cir.1988) (lower court's finding that defendant's property holdings made him ineligible for the assistance of the public defender was "not entitled to a presumption of validity because indigence itself is not a fact, but a status deduced from historical facts themselves supported by the evidence in the record"); State v. Dean, 471 N.W.2d 310, 313-14 (Wis.App.1991) ("[w]hether [defendant] was denied a constitutional right is a question of constitutional fact that [the court of appeals] review[s] independently").

Three other standards for reviewing indigency determinations appear to have been recognized. The first is that indigency is a factual matter, subject to review under the clearly erroneous standard. See, e.g., Webster v. Jones, 587 P.2d 528, 530 (Utah 1978) ("[w]hether [an indigent defendant] is able to employ his own counsel is a question of fact to be determined by the court"). In Webster, the Court observed that "[w]hen the court has made [a determination of indigency], 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." Id. The second additional view is that an indigency determination is evaluated against an abuse of discretion standard. See, e.g., State v. Fiala, 107 Or.App. 193, 810 P.2d 1344, 1345 (1991) ("The determination as to whether defendant qualifies for court-appointed counsel is a question for the trial court, and we review only for an abuse of discretion."). This court's decision in Kelsey v. Hanson, 818 P.2d 590 (Utah App.1991), applied an abuse of discretion standard in reviewing an indigency determination in a civil case

A third position suggests that while the standard is abuse of discretion, that standard should be applied more rigorously than is usually the case in reviewing for abuse of discretion. This view was explained by the Colorado Supreme Court in Nikander v. District Court, 711 P.2d 1260 (Colo.1986), as follows:

The determination of whether a person is indigent and, therefore, entitled to appointment of counsel and a free transcript for purposes of an appeal rests initially in the sound discretion of the trial court and is reviewable only for abuse of discretion. However, such a determination, though entitled to great weight, is subject to careful scrutiny for the reason that it involves a basic constitutional right.

Id. at 1262 (citations omitted). Accord People v. Nord, 790 P.2d 311, 313 (Colo.1990); Redmond v. State, 518...

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