Commonwealth v. Porter, 971 N.E.2d 291

Defendant indicted on 93 counts of failing to pay wages timely under G. L. c. 149, § 148, in 2009.
Filed affidavit of indigency and sought public counsel; probation interviewed and recommended non-indigent.
Three hearings held in 2010 where defendant appeared without counsel; defendant argued limited discretionary income and illiquidity of real properties.
Judge found defendant not indigent, concluding combined income with spouse (~$60,000) exceeded poverty-based thresholds and that properties were liquid or convertible assets.
Superior Court certified the decision; defendant sought direct appellate review; issue framed around burden of proof for indigency and constitutionality of rule 3:10, § 1 (b) (ii).
Massachusetts Supreme Judicial Court held that a defendant seeking appointed counsel bears the burden of proving indigency by a preponderance of the evidence and that rule 3:10, § 1 (b) (ii) does not violate constitutional guarantees.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Who bears the burden of proving indigency	State bears burden after initial showing; liquid assets assessed	Defendant bears burden to prove indigency by preponderance	Defendant bears the burden of proof by preponderance
constitutionality of spousal-asset attribution (rule 3:10, § 1 (b) (ii))	Presumption rational to ensure counsel funded for truly indigent	Presumption infringes right to counsel and due process	Rule survives rational basis review; presumption valid as rebuttable
Definition and treatment of liquid assets (rule 3:10, § 1 (h))	Equity in real estate may be liquid if reasonably convertible to cash	Properties may be illiquid and not readily convertible	Court clarifies liquid-asset concept; assigns burden to defendant to prove illiquidity
Appropriateness of judge’s reliance on income thresholds	Combined income exceeds poverty guideline, supports non-indigent status	Non-liquid assets and her husband’s income should be treated differently	Income-based threshold considered but not dispositive; burden-shifting approach applies
Timing and steps for appointing counsel	Judges should appoint counsel promptly when indigence likely; can defer	Delay harms right to prompt counsel	Court reiterates need for timely appointment and potential use of costs or civil remedies; remand for findings consistent with opinion

United States v. Brockman, 183 F.3d 891 (8th Cir. 1999) (burden of proof for indigency rests with defendant in absence explicit rule)
United States v. Barcelon, 833 F.2d 894 (10th Cir. 1987) (indigency evidence burden shift considerations)
United States v. Harris, 707 F.2d 653 (2d Cir.) (indigency proof considerations in criminal defense)
State v. Buelow, 122 Wis. 2d 465 (Ct. App. 1984) (five-factor framework for allocating burden of proof in indigency claims)
Commonwealth v. Godwin, 60 Mass. App. Ct. 605 (2004) (Mass. Appeals Court on indigency burden and related issues)
State v. Suiter, 138 Idaho 662 (Idaho 2003) (indigency burden and support obligations in context of counsel costs)
McFatridge v. State, 309 S.W.3d 1 (Tex. Crim. App. 2010) (state approach to indigency and counsel cost)
Commonwealth v. Gravatt, 868 F.2d 585 (3d Cir. 1989) (burden of proving financial eligibility for appointed counsel; public defense)
State v. Vincent, 883 P.2d 278 (Utah 1994) (indigency proof standards in financial eligibility)