The question in this appeal is not whether indigent persons are entitled to a free copy
I.
Pursuant to OCGA § 9-15-2 (a) (“the costs statute”), when any party is unable to pay any deposit, fee, or other required cost in a court of this state, the party may submit an affidavit of indigence and be relieved from paying costs. Transcript fees are included among the covered costs. The costs statute, in turn, provides two methоds for challenging affidavits of indigence. First, another party at interest “may contest the truth of an affidavit of indigence by verifying affirmatively under oath that the same is untrue.” OCGA § 9-15-2 (a) (2). That did not occur here. Instead, as is permitted in the absenсe of a party challenge, the court itself “inquire[d] into the truth of the affidavit of indigence.” OCGA § 9-15-2 (b).
The record reflects that Roberson’s counsel exchanged e-mails with the trial court regarding Roberson’s request for a transcript. In an e-mail to counsel, the trial judge who presided over Roberson’s criminal trial indicated that she had “reviewed [the] Motion to Obtain Transcript,” but recalled that “during the trial Roberson testified that she had recently moved into a nice house.” The trial judge further stated, “[b]ased on my recollection of the testimony and trial, I would like to have some proof or evidence of her indigence before approving transcription at the expensе of the Court.” In a subsequent e-mail, the trial judge again requested that Roberson’s counsel submit documentation and evidence regarding indigence to the Court. Roberson now argues that the indigence affidavit, which she had filed prior tо the trial court’s request for evidence, established a presumption of indigence and shifted the burden to the trial court to rebut the affidavit’s contentions with contrary, court-developed evidence of her financial circumstances. After a hearing on the motion, the trial court denied Roberson’s motion to obtain a transcript without charge.
II.
The statutory provision at issue here, OCGA § 9-15-2 (a) (2), addresses reviewability: “The judgment of the court on all issues of fact concerning the ability of a party to pay costs or give bond shall be final.” This Court recognized that same language in Penland v. State,
The Indigent Defense Act of 2003 (“IDA”), OCGA § 17-12-1 et seq., does not change that conclusion. That statute establishes the Georgia Public Defender Council, an indeрendent executive branch agency, and makes the Council responsible for assuring “adequate and effective legal representation” for indigent persons. OCGA § 17-12-1 (c). The IDA sets out a definition for “indigent person” for the purрoses of securing representation from a public defender, and makes the circuit public defender responsible for determining who meets that definition. Id. at §§ 17-12-2 (6), 17-12-24 (a). Roberson contends that the IDA makes a circuit public defеnder’s determination of indigence binding on a trial court faced with determining indigence for the purposes of obtaining a transcript at county expense. We disagree.
The IDA and the costs statute each require a determination of indigence, but the two laws are directed at determining indigence for different purposes — representation and costs, respectively Whether that is the best way to allocate determinations of indigencе is not for us to consider or decide. In any event, regardless of whether a person seeks help for court costs or representation, the burden of proving indigence rests with the defendant claiming to be indigent. See, e.g., Bostick v. Ricketts,
The costs statute plainly pеrmits the trial court to “inquire into the truth” of the affidavit — even absent a request by another party to do so — and to determine a party’s ability to pay after holding a hearing on the matter. OCGA § 9-15-2 (b). But neither the costs statute nor the IDA reveals any intent to make the circuit public defender’s determination of indigence for the purpose of representation similarly conclusive for the purpose of determining the ability to pay costs. Simply put, the costs stаtute controls one facet of the indigence inquiry, and the IDA controls the other.
The IDA, then, cannot disturb the costs statute’s exclusive commitment of the determination of indigence to the trial court. Instead, the “judgment of the cоurt on all issues of fact concerning the ability ofa party to pay costs or give bondshallbe final.” OCGA § 9-15-2 (a) (2); Penland,
In reaching this conclusion, we dо not forget that “an indigent, on appeal, is entitled as a matter of right to a free copy of the transcript of trial court proceedings in which he has been a party.” Mitchell v. State,
III.
Roberson is correct, however, that even where appellate review of an indigence determination
Nonetheless, Roberson has failed to show that procedural error exists in her case. Such review could perhaps be had where the trial court either failed to hold a heаring to consider the evidence tendered or demonstrated a failure to consider the evidence. But here, the trial court’s order indicates that a hearing was held and states the court’s reasons for denying Roberson’s request. The trial court thus fulfilled its procedural duties to hold a hearing before determining that Roberson could pay the transcript costs. See OCGA § 9-15-2 (b). Accordingly, and unlike the indigent defendants in Ford, Hawkins, and Massey, Roberson was afforded a hearing to determine her indigent status.
As for Roberson’s alternative procedural challenge, in which she alleges that the trial court failed to consider the evidence, we cannot reach any such conclusion on the record сurrently before us. While Roberson contends that she presented a myriad of evidence supporting her claims of indigence to the trial court, none of those documents — with the exception of the April 29, 2014 affidavit of pоverty — appear in the record before this Court. “It is well established that the burden is on the party alleging error to show it by the record and that where the proof necessary for determination of the issues on appeаl is omitted from the record, an appellate court must assume that the judgment below was correct and affirm.” Adamson v. Sanders,
Judgment affirmed.
Notes
No transcript of the hearing appears in the record before this Court.
Roberson’s аffidavit of poverty reads in its entirety as follows:
NICK ROBERSON, being first duly sworn, identifies herself as the Defendant named in the above-styled accusation and states upon her oath that she desires to appeal from her conviction for Simple Battery Family Violence but she is indigent and on account of her poverty is unable to pay the fees and costs normally required. She executes this oath under [OCGA] § 5-6-4 in order that she may be permitted to proceed on аppeal in forma pauperis.
Roberson’s brief describes various equal protection arguments that were not raised in, or addressed by, the trial court or the Court of Appeals. Roberson agreed in a post-argument letter brief that such claims cannot be raised to this Court in the first instance, and indeed asserted that “it was not the Appellant’s intention to raise an Equal Protection claim.” We therefore decline to address those issues. See, e.g., Patterson v. State,