Case Review - Public Defender Eligibility

In State vs. Lewis the defendant was convicted of child molestation in the 1st degree.   He appealed his conviction on the basis that the trial court failed to appoint an attorney to represent him.  The trial court set defendant's bail at $50,000.  This bond was posted by someone other than the defendant.  The defendant told the trial court that he did not have the money to hire private counsel but after review of his financial situation the public defender's office and the trial court determined that the defendant was ineligible for the public defender's services.  The trial court advised the defendant about the perils of representing himself and gave him time to hire counsel but defendant failed to do so.  The appellate court ruled that the trial court did not err in its ruling. 

Some of the guidelines the court followed are:

A person is eligible for representation by a public defender when it appears from all of the circumstances of the case including his ability to make bond, his income and the number of persons dependent on him for support that the person does not have the means at his disposal . . . to obtain counsel in his behalf and is indigent. Section 600.086.1.

A court’s finding of non-indigency renders a defendant ineligible for public defender services and places on him the burden of obtaining counsel. State ex rel. Tanzey v. Richter, 762 S.W.2d 857, 858 (Mo.App.E.D. 1989).

A "[d]efendant’s refusal to sign a written waiver will not, however, provide him with a means to avoid a trial on the charge against him." Id. Accordingly, "[a] non-indigent defendant who wants counsel but refuses to hire one will be allowed to proceed pro se." Id. Nevertheless, the defendant should be warned of the perils of self-representation so that he may knowingly make the choice to proceed pro se. Id.

A criminal defendant is guaranteed the right to counsel. State v. West, 949 S.W.2d 914, 915 (Mo.App.E.D. 1997). The right to counsel can be impliedly waived by a defendant who fails to retain counsel within a reasonable time. Id.

The guidelines for determining indigency, as it relates to one’s eligibility for public defender services, states: "A defendant may be considered indigent if his/her gross pay and other sources of income do not exceed the federal poverty guideline as issued in the Federal Register by the U.S. Department of Health and Human Services." 18 CSR 10-3.010(2)(A)(2002).(FN3) The federal poverty guidelines for the year 2003 for a one-person household are $8,980 per year and for a two-person household are $12,120 per year. Annual Update of the HHS Poverty Guidelines, 68 Fed. Reg. 6456 (Feb. 7, 2003). The federal poverty guidelines for the year 2004 for a one-person household are $9,310 per year and for a two-person household are $12,490 per year. Annual Update of the HHS Poverty Guidelines, 69 Fed. Reg. 7336 (Feb. 13, 2004). The federal poverty guidelines are not dispositive in determining indigency, but rather are one of several factors the trial court should consider.

Those additional factors to consider when determining if a defendant is indigent are the defendant’s debts, bond, spouse’s income, parent’s income, mortgage, and assets. 18 CSR 10-3.010(2)(B). Regarding the bond factor, "[i]f the defendant has been released on bail on any case in the amount of five thousand dollars . . . or more, a presumption is created that the defendant is not indigent and the ability of the defendant to meet the bail must be given consideration." 18 CSR 10-3.010(2)(B)(2).

The defendant made $300 - $400 per week and paid child support in the amount of $74.00 per month.  This exceeded the federal poverty guidelines.  In addition to this, the fact that the defendant posted the $50,000 bond was a big strike against him.  There is a presumption that if a defendant posts his bond, he has the financial means to hire private counsel and it is up to the defendant to overcome this presumption.  Here the defendant failed to do so.

Source:  State of Missouri vs. Mark E. Lewis, ED86961 (Mo. App. E.D. 04/03/2007)