*2 GARFF, ORME, Before JACKSON JJ.
OPINION
ORME, Judge: appeals from Appellant an order ruling appellant Third District Court impecunious indigent or under Utah Ann. 77-32-1 Code Code Utah § (1992), and therefore Ann. 78-56-8 § court-appointed or to entitled to county pay preparation for the have the appeal. transcripts on We reverse.
FACTS charged one appellant
The State
theft,
felony, in
degree
a second
count of
Ann.
76-6-404
of Utah Code
violation
eventually entered a con-
theft,
A
guilty to
a class
plea of
ditional
misdemeanor,
explicitly reserving his
plea
prevail
should
withdraw
Sery,
(Utah App.1988).
August of
year
was
to one
appellant
sentenced
County
A fine of
Lake
Jail.
the Salt
$1,526,
$625,
partial re-
restitution
court-appointed
coun-
of fees
coupment
im-
were also
sel in the amount
ap-
stayed, and
posed. The sentence was
probation.
pellant
placed
was
appellant
sentencing,
Shortly after
Appeal
the trial
Notice of
from
filed his
quash the
of his
court’s denial
motion
In his mo-
order.
magistrate’s bindover
improperly
tion, appellant claimed the State
after a dismissal
the information
refiled
hearing
the case.
stage preliminary
filed,
hearing, appel-
ment. At the time of the
Appeal
was
the Notice
time
At the
Impecu-
children,
caring
an Affidavit of
for his two
thus
executed
lant
Thereafter,
judge refused
niosity.
obviating
child care. His
need
requiring
Lake Coun-
sign an order
Salt
ex-wife’s income was the sole source of the
*3
preparing a tran-
cost of
ty to bear the
family’s support. Appellant’s ex-wife was
asked this court to de-
script.1 Appellant
earning
gross monthly salary
approxi-
a
indigent.
remanded
termine he was
$1,400.
testified,
mately
Appellant
without
court for a deter-
matter to the district
contravention, that his ex-wife took home
impecuniosity.
mination of
$1,000
month.
about
each
22, 1991, the district court
September
On
The trial court determined defendant was
evidentiary hearing. At the
an
conducted
indigent
impecunious
again
de-
he had worked
hearing, appellant testified
payment
motion for
nied
eight months at
continuously for almost
appeal.
of his
The court entered
costs
hearing.
shortly before the
Minit Lube until
findings of fact and conclusions of law.
Lube, ap-
employment at Minit
During his
appeals
order.4
Appellant
from that
per
pellant
approximately
earned
$6.00
Appellant contends the trial court erred
thirty-six and
hour and worked between
determining
indigent,
he is not
thus vio-
ap-
forty
Appellant
netted
hours week.
lating
rights
pro-
his constitutional
due
per
pay period
proximately
two-week
$105
cess and to counsel secured
the Four-
garnishment
after deductions and
for back
teenth Amendment and the Sixth Amend-
support.2
child
ment to the United
Constitution.
.States
prior
impecuniosity
time
Some
hearing, appellant, who had been divorced
GENERAL PRINCIPLES
apartment
years,
three
moved into an
for
Every person charged
their
children. At
with his ex-wife and
two
with an of
hearing,
their combined
punished by imprison
the time of
fense which
following:
monthly
consisted of the
bills
ment is entitled to the assistance of coun
Const,
$340;
Rent,
(against a
payment,
car
VI;
$50
Argersinger
sel. U.S.
amend.
$1,100); gas and electric
loan balance of
Hamlin,
25, 37,
2006,
U.S.
S.Ct.
$234; food, $200;
bills,
gasoline,
$150. 2012,
(1972);
who is too
The defendant has the initial burden
provid-
trial unless counsel is
assured a fair
establishing
to counsel or tran
him”);
407 U.S. at
Argersinger,
ed
Nord,
scripts
public expense. People
(“absent
knowing and
92 S.Ct. at
(Colo.1990)(transcripts);
waiver,
person may be im-
intelligent
Court,
Nikander v. District
offense, whether classi-
prisoned
(Colo.1986)(counsel).
misdemeanor,
un-
felony,
petty,
fied as
represented by counsel at his
less he was
STANDARD OF REVIEW
trial”).
*4
Appellant argues in this case that a cor-
Relatedly,
prosecu
all criminal
“[i]n
rection of error standard should
em-
be
tions,
right
has a constitutional
an accused
ployed. Appellant contends that while the
conviction,”
timely appeal from his
to a
findings underlying
trial court’s factual
Johnson,
36,
37
v.
State
conclusion as to
an individual is
whether
1981),and,
indigent,
if
has “a constitutional
deference,
indigent
given
should be
the ul-
as
right
appointment
of counsel to
ques-
timate conclusion as to
is a
appeal.”
v.
sist in that
Id. See Anders
support for
tion of law. There is some
741,
738,
87 S.Ct.
California, 386 U.S.
See,
Brower,
v.
864 F.2d
e.g., Barry
view.
(1967);
1396, 1398-99,
particular defendant entire must consider defendant’s INDIGENCY GENERALLY situation, balancing against financial assets “[ijndigence initially We note liabilities, against living and income ex Barry equivalent total destitution.” Hanson, penses. Kelsey Id. at 1262. (3rd Brower, Cir.1988). F.2d (Utah App.1991), this court “it is indigent, to be deemed suffi In order determining considered several factors in cient that defendant lack petitioner impecunious under basis, funds, practical compe on a to retain 21-7-3 21- Utah Code Ann. § counsel.” Nikander v. District tent (Supp.1991). Those include factors (Colo.1986). Court, 711 P.2d Nord, People v. petitioner’s employment Accord status and earn- (Colo.1990). “A in considered ing aid capacity; family financial from to retain digent friends; is unable financial assistance from state impairing his financial counsel without abil petitioner’s neces- programs; federal provide economic necessities of life ity to liabilities; sary peti- living expenses *6 family.” himself and his Potter v. assets, any tioner’s unencumbered dis- 1988). (Del. State, A.2d 599 While thereof, position [petitioner’s] and bor- agree a defendant most courts need and, rowing capacity; the relative impecunious penniless to be found not be amount court costs to be waived. of counsel, appointed to courts and entitled Kelsey, 591-92. In addition to 818 P.2d at great difficulty formulating have had factors, specific Kelsey these court defining indigency. As specific standards destitute, completely not stated that while previously, generally de mentioned courts indigent if person may he is “reason- be basis, indigence by case a case termine ably unable to bear the costs of the action.” to employing a set of broad criteria deter at Id. 592. indigency. gen mine what constitutes Annotation, The trial in the instant case based Habeeb, R. erally Wade Deter following on the primarily its conclusion Accused Indigency Enti mination of of which, terse, findings Counsel, of fact while to tling Appointment Him of adequate since in this case the bulk As one court stat A.L.R.3rd undisputed:8 ed, evidence “ought defendant be able statute); disputed only showed clear violation of before the court was two and 8. The evidence testimony Taylor Taylor, and his at the affidavits hearing. P.2d Estate of significant There conflict in the (Utah ("Where stipu- is no App.1989) parties have findings inconsequen- and a is evidence lack of the evidence in the record is lated the facts or See, undisputed. e.g., is tial where evidence parties undisputed, the have essential- otherwise Co., Sheep Flying Diamond v. Newton Oil ly findings least need for or at obviated the (While 1989) failure P.2d failure to rendered harmless the trial court’s remand, findings usually necessitates "a make omitted). them.”) (citations Against this enter is not if the evidence in the remand background, it is clear undisputed appellate and the court can record is fairly summary complete were not to be intended properly the case on rec- and resolve that would all the facts—an exercise relevant it."); Lovegren, 798 State v. ord before unnecessary given the lack of have been (trial (Utah App.1990) court's conclu- 771 n. 10 dispute relevant were—but what the facts about despite legality stop approved, lack sion on any key which an factors indication findings, on that issue were not where facts peace projects, in various and has em- teered the defendant been 1. That only part jobs, mat- time which resulted pend[ency] of this worked during ployed income, provided justification limited ter. request their for a for trial court’s denial of employa- is now 2. That transcript); free Nikander District not to work since has chosen ble but Court, (Colo.1986) to work. in his economic interest (court “petitioner had the to decide whether presently being That the defendant ability represent present who has full time supported his wife appeal for the tran- him his employment. script, he could obtain addi- not whether Thus, primar- conclusion the court based its higher paying posi- tional work secure (1) employ- Appellant’s ily on two factors: tion”); Morey v. 744 S.W.2d previous employ- profile, including his ment (“[ajppellants may (Tex.App.1988) not be voluntary termination history, recent ment required to earn or save funds to sufficient apparent his employment, prosecute appeal, an and an fu- he so immediately employed should be earning power may ture not be consid- support appel- financial choose and ered”). quibble While we do not with the Appellant lant received from his ex-wife. ordinarily general rule that courts must handling challenges the trial court’s him, they find rather take an individual as both factors. engaging inquiry as to than elaborate OF APPELLANT’S RELEVANCE why present he arrived at his how CAPACITY EARNING might financial state and what do it, exception improve to that rule is appro agree that the trial court appropriate in this case.9 priately appellant’s ready considered em- appellant’s argument ployability reject noted, at the time of As quit job may decision to his his recent sentencing, appellant satisfied the trial determining indigence. considered in be regular court that “he had a stable and may appear employment history.” This conclusion to be at odds testified inquiry indigency hearing limit- that until general with the rule that hearing present ability Wednesday to hire before the he was em- ed to an individual’s ployed earning him at Minit represent counsel to or to Lube $6 *7 Indeed, forty per pay transcripts. approximately for his own courts hour for hours generally indigent appel- employed week. He had there for have held that been appointment eight the hear- may approximately lant not be denied the of months. At ing, appellant deny capable if the is he was reason for volun- did Rather, underemployment. employment. he tary unemployment or of full-time stated See, Nord, em- e.g., People voluntarily v. 317 that he had terminated his (Colo.1990)(fact ployment that voluntari- at Minit “it was defendants Lube because activities, Despite ly religious costing money undertook volun- to work.” [him] that, recognized prompted given Kelsey expressly the court’s decision the undis- 9. This court in cases, appropriate “employ- an individual’s
puted facts. earning capacity’’ ment status and should State, complaint adequa- without as to the indigency. determining considered in evidence, cy of the sets forth in its brief a Brower, Barry 864 F.2d at 591. See also summary undisputed of what the evidence (3rd Cir.1988) (state requiring statute 300 n. 8 respect appellant’s with historical showed prospects court to consider for continued em- income, earnings, family expenses. and While ployment). parties disagree sharply the about what concerning appellant’s impecu- evidence tells us Appellant testified that when he was em- niosity, neither contends the court’s per keep ployed, paid $350 $400 he month to argue appellant inadequate. Nor does the State day Appellant also his two children in care. that, making he did not paid every failed in his case because two weeks at testified he was counsel, range and, retaining garnished establish the cost of the $125 because Minit Lube retainers, actually paycheck, coun- he of fee and efforts to secure from each the amount brought home was less than the amount he sel on his own. children, timing quit, expenses they of his of their and the decision curious [adult] required so”); may not be to do quit job he his so he could appellant said Henry, (Tenn.App. 738 S.W.2d his his children at home while take care of 1987) (whether parents defendant’s were hearing, appellant At the ex-wife worked. capable of financially retaining counsel on he other he believed could obtain testified his behalf was irrelevant to determination per rate hour. employment at the of $6 where defendant was emanci- eight Thus, assuming he to work were pated parents legal duty and no had per approximately days per day, hours him). However, in- support these cases readily month, appellant capable is of earn- volve the resources an adult defendant’s per ing approximately month. Under parents legal support no duty case, not- unique circumstances of this providing support in fact rath- who are not acceptance general withstanding our someone, er than the resources like the prohibition against inquiring into the rea- who, despite in this spouse former it is unemployment, sons a condition of for any legal duty, supports actuality lack of appellant gross appropriate to attribute to claiming indigency the individual in a some- month, which monthly income of $950 atypical family setting. what finding of the court’s upshot Appellant asserts that he is not because employability.11 ex-wife, legal to his married she has Therefore, obligation support he him. OF EX-WIFE’S INCOME RELEVANCE may argues, her assets and income not be that “defen The trial found determining appel- considered being presently supported by dant his represent to hire lant can afford counsel to employment.” has full time who [ex-]wife Appellant’s argument him on fails should contends trial court First, grounds. Kelsey court in two have considered ex-wife’s “fi- permitted expressly consideration determining indigent. whether he is in de- family nancial aid from or friends” supports proposition indigency. Case law termining Kelsey, 818 P.2d Second, the financial resources friends and fami- technically while true 591.12 it is ly determining should not be considered obli- ex-wife has no See, indigence. e.g., Morey gation support provide defense, reality is (Tex.App.1988) (“parents for his S.W.2d funds Appellant’s “family” functions legally are not bound otherwise. Brower, See, e.g., Barry working. Appellant family, friends. care while he was child statute, (3rd Cir.1988) (by stay n. he intended to at home for F.2d testified that consider, weeks, ‘‘[wjhere appropriate, looking then start for a better three job. go willingness imme- He also stated that intended to back defendant's high equivalency family, employer friends to assist to school to earn a school diate costs”); meeting United defense certificate. *8 Caudle, (4th Cir. 758 F.2d 996 States 1985) (in determining indigency, court consid- speak specifically 11. trial court did The income, ered, in addition to defendant’s own imputing appellant. income terms of availability from his of income to defendant parties terms of income brief State, spouse); Hill v. Ark. 805 S.W.2d disagreeing appro- imputation, on whether it is (1991) (in determining indigency, priate determining indigen- impute income in factors, consider, among cy disagreeing other on that is basi- but not whether complete appellant dis- cally Consistent "has control or what the trial did here. view, import cretionary for his we take fair of the use of funds raised others with their Court, coupled defense”); finding unemployability, Nikander v. District court’s (Colo.1986) (in testimony, appellant’s determining indigen- appellant’s to be that though analyzed he cy, must be as "com- status court must consider defendant's trial situation,” earning readily actually including what could be were he "income plete financial Dale, earning. sources”); N.W.2d from all State v. (S.D.1989) (among consid- to be factors "[ijncome determining indigency determining indigence, of other ered in a number In borrow source and courts the defendant’s from whatever state and federal consider spouse, money”). from other sources such as a income $1,500 Indeed, Appel- m in his court-ordered restitution. unit. single as a economic sheet, then, personal shows a appellant listed lants balance Impecuniosity, of Affidavit care, food, monthly net His net in- negative as child worth. joint expenses such necessary living brighter. Appel- much rent, picture and other come is not utilities full-time, working forty cohabits with Where lant estimated expenses. household, ex-wife, week, approximate- a common operating per he could earn his hours of common ex- per gross the benefit has a ly and claims month. His ex-wife $950 totality requires $1,400 According penses, justice per month. income likewise consid- calculations, income be gross the household’s these the state’s own impe- evaluating appellant’s claimed expected yield ered net earnings could be cuniosity. $1,850 per Appellant’s month. expenses, as aggregate household’s
APPELLANT’S INDIGENCY
challenged by
by appellant and not
claimed
State,
are as follows:
Although
accept the state’s
we
CONCLUSION
dence, making
entering
its own find-
ings of fact. On the basis of additional
complete finan-
examining appellant’s
In
findings regarding unscheduled necessities
situation,
correctly im-
the trial court
cial
including clothing, medical and dental ex-
The trial court
appellant.
income to
puted
bills, my colleagues
re-
penses, and other
ex-
correctly considered
also
This court
verse the trial court’s decision.
However,
considering
even
income.
wife’s
jurisdictions
survey
should not
other
when
factors,
appellant
apparent
it is
that
these
already
supreme
our own
court has
decided
“reasonably
to bear the costs
unable
is still
Additionally,
findings in this
an issue.
Kelsey,
P.2d at 592.
the action.”
support
are insufficient
to
deter-
case
Thus,
concluding
in
the trial court erred
indigency.
proper
to
rem-
mination as
indigent and there-
appellant
was not
edy
insufficiency
an
is not
to
for such
court-appointed counsel
not entitled to
fore
novo,
de
to remand
review the evidence
but
to free tran-
pursue
demonstrating
for further
how
or-
scripts. Accordingly,
the trial court’s
its conclusion.
trial court reached
der is reversed.
improper
light
A de novo review is
Webster
J.,
controlling
case of
GARFF,
Utah
concurs.
earnings through
adop-
Pointing
appoint-
individual’s future
that he received
to the fact
14.
outset,
Wayne
argues
program.
appellant
recoupment
R.
at the
tion of a
ed counsel
Israel,
apply
presumption
of indi-
this court should
H.
Criminal Procedure
LaFave & Jerold
gency
determining
11.3,
(1985) ("Recoupment programs
whether an individual
at 489
as to be entitled to
continues to be
so
primarily
who are
directed
at defendants
court-appointed
appeal.
counsel on
students)
indigent’ (e.g., college
‘temporarily
(Tex
Morey
The Utah. Court trial court conclud- ed the defendant was not doctrine of stare decisis and the based on “[t]he following findings pronouncements solemn of this court of fact: ... lightly by should not be treated ... ... 1. That the defendant has been em- seeking jurisdictions cases from other ... ployed during pend[ency] of this mat- provi order to construe a constitutional ter. construed_” already sion ... ... 2. That the employa- defendant is now Burton, Springville Banking Co. v. ble but has chosen not to work since it is (1960)(Hen Utah 2d 349 P.2d not in his economic interest to work. specially commenting riod J. on Wade J. presently being 3. That the defendant is concurrence). The doctrine stare decisis supported by his wife who has full time interpretations is not limited to of constitu employment. provisions. supreme tional Where the findings, These three although somewhat court of this state has decided an issue that pertinent, do not form a rational factual good law, Ap remains the Utah Court of indigency basis on which to base an deter- peals ignore precedent should not They mination. reference the defen- body by adopting create its own of law dant’s income. The trial court made no precedents jurisdictions. of other findings of fact as to the defendant’s as- Rule 12 of the Utah Rules of Criminal sets, liabilities, or other factors relevant to requires Procedure the trial court to “state adequate defendant’s to obtain findings on the record” where “factual opinion counsel. The main condenses issues in determining are involved a mo- findings (1) these three into two factors: 12(c). tion.” Utah purpose R.Crim.P. The employment defendant’s profile, and findings of factual is to “ensure that the support financial defendant received from from, logically ultimate follows ex-wife, finding adequate [decision] them to anbe supported by, and is the evidence....” indigency basis for an determination be- Smith, (Utah Smith 726 P.2d cause the bulk of the trial evidence was 1986); Milne Truck Lines Public undisputed. Serv. Comm’n, (Utah 1986) 720 P.2d eight As footnote of the main
(findings sufficiently should be detailed to notes, undisputed facts alone are not steps by disclose which factual conclusions enough to make unnecessary. remand reached). appellate “fairly court must be able to I dispute do not whether there was suffi- properly resolve the case on the record support cient evidence to given find- Flying before it.” Corp. Diamond Oil ings, or whether the trial arbitrarily Co., Sheep Newton ignored 1989). substantial Proper uncontroverted evi- resolution of an particular dence to finding. reach a I by ar- determination is made consideration of gue that a determination of can- all relevant “factors and circumstances logically follow from the bearing upon question_” judge. Mickle, fact as stated There 56 Haw. *11 present pay interview, for a Lopez, ability v. to first
(1974). This court
State
cert,
(Utah App.1992),
pay
1047-48
let alone the
to
for full trial
P.2d
(Utah 1992), re-
representation.
52(a) (1992). TAX
STATE COMMISSION CONCLUSION UTAH, Respondent. OF No. 920545-CA. is to be re- An determination standard, using clearly erroneous viewed Appeals of Utah. Court to the trial court’s giving great deference Jan. Findings fact are inad- findings of fact. they do not form a rational equate judge’s conclusions. In for the trial
basis us, failed the trial court has the case before enough findings of fact on relevant to state to form conclusion as issues Accordingly, indigency of the defendant. comply properly has failed to the trial court rule 12 of the Utah Rules Criminal Procedure. opinion main conducts a de novo evidence, making additional review its rever- findings of fact on which bases judge. the trial The main sal of departure from the well-estab- excuses its appellate lished functions of the trial by stating that the evidence before courts judge undisputed. Whether the undisputed is irrelevant if the evidence is necessary to evidence is silent on factors Instead make an determination. precedent appellate establishing making findings of fact after de courts novo in cases where the trial reviews insufficient, precedent Kelsey
should follow
remand this case for a redetermination
adequate coun-
defendant’s
to obtain
sel.
The main
notes
1991);
Lovegren,
798 P.2d
destitution,
equivalent to total
but is a
(Utah
as
App.1990)).1 Lovegren,
770-71
present ability
of an
individual’s
findings
in this
trial court’s
were
ability to
to retain counsel. The
retain
“inadequate
provide meaningful
review
how
is not
a function of
much
counsel
appeal.”
at 771.
Lovegren,
P.2d
has,
disposable income one
but also what
though
Lovegren panel
héld that even
disposable
can secure
with re-
pre-trial
decision on the
adequate legal
spect to
counsel. The rec-
correct,
“may
have
motion before
been
ord, including
impecuniosity hearing
are for the
court to
evidence,
critical ‘issues
trial
transcripts,
undisput-
contains
findings
fact must
not,
decide and ...
retaining
concerning
the cost of
ed
material
reveal how the court resolved each
attempt-
or whether the defendant
”
Deliran,
(quoting Acton
knowing
issue.’
Id.
procure
counsel. Without
ed
(Utah 1987)).
In the
the retainer fee the
the current rates or
front,
findings,
simply
it is
up
adequate
absence of
will
a trial
have
appellate
court to
the defendant’s
“not the function of
judge cannot determine
determination);
(this
Lopez,
factors to