HB1292: Right to counsel; target of investigation, accused appearing without counsel.

HOUSE BILL NO. 1292

Offered January 20, 2022
A BILL to amend and reenact §§ 19.2-157 and 19.2-159 of the Code of Virginia, relating to right to counsel; target of investigation.
Patron-- Williams Graves

Committee Referral Pending

Be it enacted by the General Assembly of Virginia:

1. That §§ 19.2-157 and 19.2-159 of the Code of Virginia are amended and reenacted as follows:

§ 19.2-157. Duty of court when accused appears without counsel; right to counsel upon receipt of target letter.

A. Except as may otherwise be provided in §§ 16.1-266 through 16.1-268, whenever a person charged with a criminal offense the penalty for which may be confinement in the state correctional facility or jail, including charges for revocation of suspension of imposition or execution of sentence or probation, appears before any court without being represented by counsel, the court shall inform him of his right to counsel. The accused shall be allowed a reasonable opportunity to employ counsel or, if appropriate, the statement of indigence provided for in § 19.2-159 may be executed.

B. Whenever a person is informed in writing by the attorney for the Commonwealth, the Attorney General, or counsel or special counsel for a multi-jurisdiction grand jury or special grand jury that he is the target of a criminal investigation for a criminal offense, the penalty for which may be confinement in the state correctional facility or jail, including charges for revocation of suspension of imposition or execution of sentence or probation, that target may present the written target letter to the clerk of the circuit court to set a hearing for the circuit court to proceed pursuant to subsection A. The target letter, statement of indigence, other documents, and proceedings shall be sealed until such time as the target is charged with a criminal offense related to the target letter or until good cause is shown that they be unsealed.

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

A. If the accused or target pursuant to subsection B of § 19.2-157 shall claim that he is indigent, and the charge against him or the offense for which he is a target is a criminal offense that may be punishable by 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 target or other competent evidence whether or not the accused or target is indigent within the contemplation of law pursuant to the guidelines set forth in this section.

B. In making its finding, the court shall determine whether or not the accused or target is a current recipient of a state or federally funded public assistance program for the indigent. If the accused or target 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 accused or target is necessary. If the accused or target 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 or target shall be made with consideration given to the following:

1. The net income of the accused or target, which shall include his total salary and wages minus deductions required by law. The court also shall take into account income and amenities 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 assets of the accused or target which are convertible into cash within a reasonable period of time without causing substantial hardship or jeopardizing the ability of the accused or target to maintain home and employment. 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 or target which is readily convertible into cash shall be considered, except property exempt from attachment. Any real estate owned by the accused or target shall be considered in terms of the amounts which could be raised by a loan on the property. For purposes of eligibility determination, the income, assets, and expenses of the spouse, if any, who is a member of the accused's or target's household, shall be considered, unless the spouse was the victim of the offense or offenses allegedly committed by the accused or for which he is a target.

3. Any exceptional expenses of the accused or target 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 or target shall be calculated as the sum of his total income and assets less the exceptional expenses as provided in the first paragraph of this subdivision 3. If the accused or target does not waive his right to counsel or retain counsel on his own behalf, counsel shall be appointed for the accused or target if his available funds are equal to or below 125 percent of the federal poverty income guidelines prescribed for the size of the household of the accused or target by the federal Department of Health and Human Services. 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.

If the available funds of the accused or target exceed 125 percent of the federal poverty income guidelines and the accused or target 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 or target. 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.

C. If the court determines that the accused or target is indigent as contemplated by law pursuant to the guidelines set forth in this section, the court shall provide the accused or target 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 or for which I am a target; I certify that I am without means to employ counsel and I hereby request the court to appoint counsel for me."

__________________ (signature of accused or target)

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

The executed statements by the accused or target 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.

D. Except in jurisdictions having a public defender, or unless (i) the public defender is unable to represent the defendant accused or target 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 or target 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.