HB1944: Court-appointed counsel; revises method for determination of indigency.

HOUSE BILL NO. 1944

Offered January 14, 2015
Prefiled January 13, 2015
A BILL to amend and reenact §§ 19.2-159 and 19.2-163 of the Code of Virginia and to repeal § 19.2-163.4:1 of the Code of Virginia, relating to court-appointed counsel; determination of indigency.
Patron-- McClellan

Committee Referral Pending

Be it enacted by the General Assembly of Virginia:

1. That §§ 19.2-159 and 19.2-163 of the Code of Virginia are amended and reenacted as follows:

§ 19.2-159. Determination of indigency; guidelines; statement of indigence; appointment of counsel.

A. If the accused shall claim that he is indigent, and the charge against him is a criminal offense which may be punishable by death or confinement in the state correctional facility or jail, subject to the provisions of § 19.2-160, the court shall determine from oral examination of the accused or other competent evidence whether or not the accused is indigent within the contemplation of law pursuant to the guidelines set forth in this section. The accused is eligible for the appointment of counsel if the court finds that the total financial resources available to the accused are not sufficient to pay both the household expenses allowable under subsection G and the expected cost of representation by private counsel for the duration of the trial. The fact that the accused has posted bail shall not be used as a basis to deny the appointment of counsel for the accused.

B. In making its finding, the court shall determine whether or not the accused is a current recipient of a state or federally funded public assistance program for the indigent. If the accused is a current recipient of such a program and does not waive his right to counsel or retain counsel on his own behalf, he shall be presumed eligible for the appointment of counsel. This presumption shall be rebuttable where the court finds that a more thorough examination of the financial resources of the defendant is necessary. For purposes of eligibility determination, the expected cost of representation by private counsel for the duration of the trial shall be presumed to be as follows:

1. To defend a misdemeanor charge, $3,000;

2. To defend a felony punishable by confinement in the state correctional facility for a period of no more than 10 years, $10,000;

3. To defend a felony punishable by confinement in the state correctional facility for a period of more than 10 years but no more than 20 years, $70,000; and

4. To defend a felony punishable by confinement in the state correctional facility for a period of more than 20 years or punishable by death, $700,000.

The court may adjust these presumptive amounts upon finding that (i) the presumptive amount substantially differs from the amount charged by local attorneys to defend the same offense, in which case the court may use the amount charged by local attorneys, or (ii) no local attorneys are available to defend the accused, in which case the court may add to the presumptive amount any additional costs, including costs of travel, that would be charged by a nonlocal attorney.

C. If the accused shall claim to be indigent and is not presumptively eligible under the provisions of this section, then a thorough examination of the financial resources of the accused shall be made to assess the accused's ability to pay the expected cost of representation by private counsel for the duration of the trial with consideration given to the following financial resources:

1. The net annual income of the accused, which shall include his total salary and wages minus deductions required by law. The court also shall take into account income and amenities derived annually from other sources including but not limited to social security funds, union funds, veteran's benefits, other regular support from an absent family member, public or private employee pensions, dividends, interests, rents, estates, trusts, or gifts.

2. All financial assets of the accused which are readily convertible into cash within a reasonable period of time without causing substantial hardship or jeopardizing the ability of the accused to maintain home and employment. Assets Such financial assets shall include all cash on hand as well as in checking and savings accounts, stocks, bonds, certificates of deposit, and tax refunds. All personal property owned by the accused which is readily convertible into cash shall be considered, except property exempt from attachment. Any real estate owned by the accused, except for the accused's primary residence, shall be considered in terms of the amounts which could be raised by a loan on the property without causing substantial hardship or jeopardizing the ability of the accused to maintain home and employment. If the accused owns more than one motor vehicle, any additional vehicle shall be considered in terms of the amounts which could be raised by a loan on the additional vehicle without causing substantial hardship or jeopardizing the ability of the accused to maintain home and employment.

For purposes of eligibility determination, the annual income, financial assets, and expenses of the spouse, if any, who is a member of the accused's household, shall be considered, unless the spouse was the victim of the offense or offenses allegedly committed by the accused. If the accused is a minor, the annual income, financial assets, and expenses of the accused's parents, if any, shall be considered unless the parents were the victim of the offense or offenses allegedly committed by the accused or the court finds good cause to treat such income and assets as unavailable to the accused.

For purposes of eligibility determination, no consideration shall be given to credit available to the accused, including but not limited to amounts available from credit cards or amounts that can be borrowed against life insurance policies or from public or private employee pensions or savings plans.

3. Any exceptional expenses of the accused and his family which would, in all probability, prohibit him from being able to secure private counsel. Such items shall include but not be limited to costs for medical care, family support obligations, and child care payments.

The available funds of the accused shall be calculated as the sum of his total income and assets less the exceptional expenses as provided in paragraph 3 above. If the accused does not waive his right to counsel or retain counsel on his own behalf, counsel shall be appointed for the accused if his available funds areD. An accused is presumptively eligible for the appointment of counsel and the court may appoint counsel without further examination if:

1. The accused is a current recipient of a state or federally funded public assistance program for the indigent;

2. Counsel was appointed for the accused within the previous 12 months based on an examination of the accused's financial resources and there has been no significant improvement in the accused's ability to pay since that time; or

3. The gross annual income available to the accused is equal to or below 125 200 percent of the federal poverty income guidelines prescribed for the size of the household of the accused by the federal Department of Health and Human Services and the value of the financial resources available to the accused as determined under subsection C is less than one-half of the expected cost of representation by private counsel for the duration of the trial. The Supreme Court of Virginia shall be responsible for distributing to all courts the annual updates of the federal poverty income guidelines made by the Department.

E. If the court does not find the accused presumptively eligible for the appointment of counsel under subsection D, the court shall conduct an examination of the accused's financial resources pursuant to subsection C to determine whether to appoint counsel based on the information before the court. The court may require the accused (i) to submit an affidavit detailing his financial resources accompanied by documentation of his income, (ii) to submit information or documentation regarding specific assets, (iii) to appear at a hearing on the appointment of counsel or pretrial services interview, or (iv) to make reasonable efforts to obtain private counsel and to report to the court on the results of such efforts.

If the available funds of the accused exceed 125 percent of the federal poverty income guidelines andF. The court shall find that the accused is ineligible for the appointment of counsel if the value of the financial resources available to the accused as determined under subsection C is more than one-half of the expected cost of representation by private counsel for the duration of the trial. If the accused is determined to be ineligible for the appointment of counsel and fails to employ counsel and does not waive his right to counsel, the court may, in exceptional circumstances, and where the ends of justice so require, appoint an attorney to represent the accused. However, in making such appointments, the court shall state in writing its reasons for so doing. The written statement by the court shall be included in the permanent record of the case.

If the court determines that the financial resources available to the accused as determined under subsection C have a negative balance, the court shall find the accused to be indigent and incapable of contributing to the cost of counsel. The court shall appoint counsel for the accused and the accused shall not be required to contribute to the cost of counsel except as provided in subsection I.

G. For purposes of eligibility determination, the following household expenses are allowable to the extent that the court finds them reasonable: (i) housing, (ii) utilities and telephone, (iii) household supplies, (iv) food, (v) medical and dental care, (vi) personal care, (vii) clothing, (viii) child care, (ix) funeral costs, (x) transportation, including costs associated with owning and maintaining a motor vehicle, (xi) insurance, (xii) tuition, (xiii) minimum payments for servicing debt obligations, (xiv) court-ordered payments, (xv) employment-related expenses, and (xvi) any other expenses allowed by the court.

Household expenses are only allowable to the extent that such expenses are paid by or are the obligation of the accused. Household expenses paid on behalf of the accused by another shall not be considered allowable. If the accused is married, the court shall presume that each spouse pays household expenses in an amount proportionate to each spouse's income.

C. H. If the court determines that the accused is indigent as contemplated by law pursuant to the guidelines set forth in this section, the court shall provide the accused with a statement which shall contain the following:

"I have been advised this _______ day of __________, 20___, by the (name of court) court of my right to representation by counsel in the trial of the charge pending against me; I certify that I am without means to employ counsel and I hereby request the court to appoint counsel for me."

______________________ (signature of accused)

The court shall also require the accused to complete a written financial statement to support the claim of indigency and to permit the court to determine whether or not the accused is indigent within the contemplation of law. The accused shall execute the said statements under oath, and the said court shall appoint competent counsel to represent the accused in the proceeding against him, including an appeal, if any, until relieved or replaced by other counsel.

The executed statements by the accused and the order of appointment of counsel shall be filed with and become a part of the record of such proceeding.

All other instances in which the appointment of counsel is required for an indigent shall be made in accordance with the guidelines prescribed in this section.

I. The accused shall not be required to pay the amount allowed by the court for the counsel appointed for the accused unless the accused engaged in fraud during the determination of his eligibility for the appointment of counsel. If the accused is found by the court to have engaged in fraud, the amount allowed by the court to the attorney appointed to defend him shall be taxed against the defendant as a part of the costs of prosecution and, if collected, the same shall be paid to the Commonwealth, or the county, city, or town, as the case may be. An abstract of such costs shall be docketed in the judgment docket and execution lien book maintained by such court.

D. J. Except in jurisdictions having a public defender, or unless (i) the public defender is unable to represent the defendant by reason of conflict of interest or (ii) the court finds that appointment of other counsel is necessary to attain the ends of justice, counsel appointed by the court for representation of the accused shall be selected by a fair system of rotation among members of the bar practicing before the court whose names are on the list maintained by the Indigent Defense Commission pursuant to § 19.2-163.01. If no attorney who is on the list maintained by the Indigent Defense Commission is reasonably available, the court may appoint as counsel an attorney not on the list who has otherwise demonstrated to the court's satisfaction an appropriate level of training and experience. The court shall provide notice to the Commission of the appointment of the attorney.

§ 19.2-163. Compensation of court-appointed counsel.

Upon submission to the court, for which appointed representation is provided, of a detailed accounting of the time expended for that representation, made within 30 days of the completion of all proceedings in that court, counsel appointed to represent an indigent accused in a criminal case shall be compensated for his services on an hourly basis at a rate set by the Supreme Court of Virginia in a total amount not to exceed the amounts specified in the following schedule:

1. In a district court, a sum not to exceed $120, provided that, notwithstanding the foregoing limitation, the court in its discretion, and subject to guidelines issued by the Executive Secretary of the Supreme Court of Virginia, may waive the limitation of fees up to (i) an additional $120 when the effort expended, the time reasonably necessary for the particular representation, the novelty and difficulty of the issues, or other circumstances warrant such a waiver; or (ii) an amount up to $650 to defend, in the case of a juvenile, an offense that would be a felony if committed by an adult that may be punishable by confinement in the state correctional facility for a period of more than 20 years, or a charge of violation of probation for such offense, when the effort expended, the time reasonably necessary for the particular representation, the novelty and difficulty of the issues, or other circumstances warrant such a waiver; or (iii) such other amount as may be provided by law. Such amount shall be allowed in any case wherein counsel conducts the defense of a single charge against the indigent through to its conclusion or a charge of violation of probation at any hearing conducted under § 19.2-306; thereafter, compensation for additional charges against the same accused also conducted by the same counsel shall be allowed on the basis of additional time expended as to such additional charges;

2. In a circuit court (i) to defend a felony charge that may be punishable by death an amount deemed reasonable by the court; (ii) to defend a felony charge that may be punishable by confinement in the state correctional facility for a period of more than 20 years, or a charge of violation of probation for such offense, a sum not to exceed $1,235, provided that, notwithstanding the foregoing limitation, the court in its discretion, and subject to guidelines issued by the Executive Secretary of the Supreme Court of Virginia, may waive the limitation of fees up to an additional $850 when the effort expended, the time reasonably necessary for the particular representation, the novelty and difficulty of the issues, or other circumstances warrant such a waiver; (iii) to defend any other felony charge, or a charge of violation of probation for such offense, a sum not to exceed $445, provided that, notwithstanding the foregoing limitation, the court in its discretion, and subject to guidelines issued by the Executive Secretary of the Supreme Court of Virginia, may waive the limitation of fees up to an additional $155 when the effort expended, the time reasonably necessary for the particular representation, the novelty and difficulty of the issues, or other circumstances warrant such a waiver; and (iv) in the circuit court only, to defend any misdemeanor charge punishable by confinement in jail or a charge of violation of probation for such offense, a sum not to exceed $158. In the event any case is required to be retried due to a mistrial for any cause or reversed on appeal, the court may allow an additional fee for each case in an amount not to exceed the amounts allowable in the initial trial. In the event counsel is appointed to defend an indigent charged with a felony that may be punishable by death, such counsel shall continue to receive compensation as provided in this paragraph for defending such a felony, regardless of whether the charge is reduced or amended to a felony that may not be punishable by death, prior to final disposition of the case. In the event counsel is appointed to defend an indigent charged with any other felony, such counsel shall receive compensation as provided in this paragraph for defending such a felony, regardless of whether the charge is reduced or amended to a misdemeanor or lesser felony prior to final disposition of the case in either the district court or circuit court.

Counsel appointed to represent an indigent accused in a criminal case, who are not public defenders, may request an additional waiver exceeding the amounts provided for in this section. The request for any additional amount shall be submitted to the presiding judge, in writing, with a detailed accounting of the time spent and the justification for the additional amount. The presiding judge shall determine, subject to guidelines issued by the Executive Secretary of the Supreme Court of Virginia, whether the request for an additional amount is justified in whole or in part, by considering the effort expended and the time reasonably necessary for the particular representation, and, if so, shall forward the request as approved to the chief judge of the circuit court or district court for approval.

If at any time the funds appropriated to pay for waivers under this section become insufficient, the Executive Secretary of the Supreme Court of Virginia shall so certify to the courts and no further waivers shall be approved.

The circuit or district court shall direct the payment of such reasonable expenses incurred by such court-appointed counsel as it deems appropriate under the circumstances of the case. Counsel appointed by the court to represent an indigent charged with repeated violations of the same section of the Code of Virginia, with each of such violations arising out of the same incident, occurrence, or transaction, shall be compensated in an amount not to exceed the fee prescribed for the defense of a single charge, if such offenses are tried as part of the same judicial proceeding. The trial judge shall consider any guidelines established by the Supreme Court but shall have the sole discretion to fix the amount of compensation to be paid counsel appointed by the court to defend a felony charge that may be punishable by death.

The circuit or district court shall direct that the foregoing payments shall be paid out by the Commonwealth, if the defendant is charged with a violation of a statute, or by the county, city or town, if the defendant is charged with a violation of a county, city or town ordinance, to the attorney so appointed to defend such person as compensation for such defense.

Counsel representing a defendant charged with a Class 1 felony, or counsel representing an indigent prisoner under sentence of death in a state habeas corpus proceeding, may submit to the court, on a monthly basis, a statement of all costs incurred and fees charged by him in the case during that month. Whenever the total charges as are deemed reasonable by the court for which payment has not previously been made or requested exceed $1,000, the court may direct that payment be made as otherwise provided in this section.

When such directive is entered upon the order book of the court, the Commonwealth, county, city or town, as the case may be, shall provide for the payment out of its treasury of the sum of money so specified. If the defendant is convicted, the amount allowed by the court to the attorney appointed to defend him shall be taxed against the defendant as a part of the costs of prosecution and, if collected, the same shall be paid to the Commonwealth, or the county, city or town, as the case may be. In the event that counsel for the defendant requests a waiver of the limitations on compensation, the court shall assess against the defendant an amount equal to the pre-waiver compensation limit specified in this section for each charge for which the defendant was convicted. An abstract of such costs shall be docketed in the judgment docket and execution lien book maintained by such court.

Any statement submitted by an attorney for payments due him for indigent representation or for representation of a child pursuant to § 16.1-266 shall, after the submission of the statement, be forwarded forthwith by the clerk to the Commonwealth, county, city or town, as the case may be, responsible for payment.

For the purposes of this section, the defense of a case may be considered conducted through to its conclusion and an appointed counsel entitled to compensation for his services in the event an indigent accused fails to appear in court subject to a capias for his arrest or a show cause summons for his failure to appear and remains a fugitive from justice for one year following the issuance of the capias or the summons to show cause, and appointed counsel has appeared at a hearing on behalf of the accused.

Effective July 1, 2007, the Executive Secretary of the Supreme Court of Virginia shall track and report the number and category of offenses charged involving adult and juvenile offenders in cases in which court-appointed counsel is assigned. The Executive Secretary shall also track and report the amounts paid by waiver above the initial cap to court-appointed counsel. The Executive Secretary shall provide these reports to the Governor, members of the House Appropriations Committee, and members of the Senate Finance Committee on a quarterly basis.

2. That § 19.2-163.4:1 of the Code of Virginia is repealed.

3. That the provisions of this act may result in a net increase in periods of imprisonment or commitment. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation cannot be determined for periods of imprisonment in state adult correctional facilities; therefore, Chapter 2 of the Acts of Assembly of 2014, Special Session I, requires the Virginia Criminal Sentencing Commission to assign a minimum fiscal impact of $50,000. Pursuant to § 30-19.1:4, the estimated amount of the necessary appropriation is $0 for periods of commitment to the custody of the Department of Juvenile Justice.