|
You can of the Alaska Court of Appeals opinions.
|
|
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers
are encouraged to bring typographical or other formal
errors to the attention of the Clerk of the Appellate
Courts.
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
| JAMON R. BENSON, | ) |
| ) Court of Appeals No. A-8765 | |
| Appellant, | ) Trial Court No. 2BA-03-299 CR |
| ) | |
| v. | ) O P I N I O N |
| ) | |
| STATE OF ALASKA, | ) |
| ) | |
| Appellee. | ) No. 2106 - June 15, 2007 |
| ) | |
Appeal from the Superior Court, Second Judi
cial District, Barrow, Michael I. Jeffery and
Donald D. Hopwood, Judges.
Appearances: G. Blair McCune, Attorney at
Law, Anchorage, for the Appellant. Blair M.
Christensen, Assistant Attorney General,
Office of Special Prosecutions and Appeals,
Anchorage, and David W. M rquez, Attorney
General, Juneau, for the Appellee.
Before: Coats, Chief Judge, and Mannheimer
and Stewart, Judges.
COATS, Chief Judge.
Jamon R. Benson was charged with a number of crimes
after he reportedly assaulted his girlfriend and her two
children while he was intoxicated. The superior court appointed
counsel to represent Benson. Afterwards, a substantial amount of
bail money from an unrelated case was returned to Benson. Later,
Bensons minor son posted $50,000 in bail for him in the present
case. Based on these events, the trial court determined that
Benson had the means to hire an attorney and consequently was not
qualified to have counsel appointed at public expense. Yet
Benson persistently claimed that he was indigent and was unable,
despite substantial efforts, to find a private attorney who would
represent him. Ultimately, Benson represented himself at trial,
claiming that he was forced to do so because he had been unable
to obtain an attorney to represent him. Following his conviction
on some of the charges, Benson appealed.
We conclude that because Benson claimed that he did not
have the financial resources to hire an attorney, the trial
court had a duty under Alaska Criminal Rule 39.1(e) to determine
whether Benson was indigent either by placing the defendant under
oath and asking about the defendants financial status, or by
requiring the defendant to complete a signed sworn financial
statement. We therefore remand the case for the superior court
to determine whether Benson was indigent at the time of his
trial. Unless, after following the proper procedures, the court
determines that Benson had the financial ability to hire an
attorney to represent him but chose instead to represent himself,
the court must vacate Bensons convictions and order a new trial.
We reserve consideration of Bensons sentencing argument until
after his representation issues are resolved.
Factual and procedural background
Jamon R. Benson was indicted on one count of assault
in the third degree,1 and was charged by information with two
counts of assault in the fourth degree,2 one count of misconduct
involving weapons in the fourth degree,3 and two counts of
violating his conditions of release.4 The State alleged that
Benson, while intoxicated on a camping trip, threatened his
girlfriend with a gun and, in the process, scared her two
children. Superior Court Judge Michael I. Jeffery appointed an
attorney to represent Benson.
At a later hearing in front of Judge Jeffery, the court
and the parties discussed Bensons plea agreement in several other
misdemeanor cases. As part of that plea agreement, approximately
$11,500 in bail money was returned to Benson. Judge Jeffery
ruled that, because he would be receiving this sum, Benson could
afford to hire his own attorney in this case and was no longer
eligible for court-appointed counsel. Judge Jeffery further
ordered that Benson could only use the refunded bail money for
the purposes of hiring an attorney. Judge Jeffery therefore
allowed Bensons court-appointed attorney to withdraw from
representing him. Judge Jeffery stated that Bensons bail on the
charges in this case would be $50,000.
In response, Benson claimed that the $11,500 was not
sufficient for him to hire an attorney. Benson represented that
he had contacted every attorney in Fairbanks and that the
attorneys had either asked for retainers above what he could pay
or had stated that they were not interested in representing him.
Benson also represented that he already owed substantial amounts
of money and that the refunded bail money was therefore already
spent and was not available for him to hire an attorney. Benson
continued to insist at other court appearances that he was unable
to hire an attorney.
Several days later, at a bail hearing in front of
Superior Court Judge Richard H. Erlich, Benson asserted that he
was being forced to go to trial without an attorney. He asked
for lower bail so that he could have access to legal materials
and prepare for trial. Later that same day, Bensons seven-year-
old son posted a $50,000 cash bond for Bensons bail in the
present case.
At a hearing a few days later, Judge Erlich gave Benson
approximately twenty days to find an attorney. Benson told Judge
Erlich that he thought he would be able to find an attorney
within that time. But at a later hearing in front of Judge
Erlich, Benson still had not retained counsel. When Judge Erlich
asked Benson if he intended to represent himself at trial, Benson
stated that representing himself was his only option. At another
hearing a few days later, Judge Erlich noted that the court had
previously determined that Benson was able to afford private
counsel. He strongly recommended that Benson not try to
represent himself.
Retired Superior Court Judge Donald D. Hopwood was
assigned to preside over Bensons trial. The parties and Judge
Hopwood convened for a pre-trial conference. Apparently, the
electronic recording of this hearing is unavailable and no
transcript of the hearing exists. We therefore have only the log
notes of the hearing. The log notes show that Judge Hopwood
questioned Benson about the wisdom of proceeding to trial without
an attorney. Benson maintained that he did not want to represent
himself but that he was unable to retain an attorney. Judge
Hopwood pointed out that Benson had $11,500 in bail money
refunded to him and that Benson had posted a $50,000 cash bond to
make bail. He apparently asked Benson how he could not afford an
attorney after coming up with the $50,000 in bail money. Judge
Hopwood ultimately determined that Benson had knowingly waived
his right to counsel and found that there was nothing to indicate
that Benson was eligible for court-appointed counsel.
On the day that Bensons trial was scheduled to begin,
Benson told Judge Hopwood that he was not prepared to go to trial
and that he wished to have an attorney represent him. Benson
told Judge Hopwood that his experience representing himself in an
unrelated misdemeanor trial a few weeks prior had made him
realize that he had no business trying to represent himself.
Judge Hopwood denied Bensons request to delay the trial, noting
that Benson had previously insisted that he wanted to go to trial
promptly. Judge Hopwood concluded that Benson was trying to
manipulate the system.
Benson represented himself through the course of his
seven-day jury trial. The jury found Benson guilty of one count
of assault in the fourth degree and two counts of violating his
conditions of release. The jury acquitted Benson on the other
charges. Following his sentencing, Benson appealed his
convictions to this court.
Why we conclude we must remand the case
An indigent person who is charged with a crime is
entitled to have the court appoint an attorney to represent him
at public expense.5 The Alaska statutes provide that the trial
court is to make the determination of whether a defendant is
eligible for court-appointed counsel, considering the defendants
inability to pay based upon multiple factors, such as income,
property owned, outstanding debt, and the number and ages of
dependents.6 Under Criminal Rule 39, the trial court must
inform a defendant of his right to counsel and his right to
appointed counsel. If a defendant claims a financial inability
to hire counsel, the court must determine whether the defendant
is eligible for the appointment of counsel.7 The courts duty is
set out in Criminal Rule 39.1(e): [t]he court or its designee
shall determine whether a defendant is eligible for court-
appointed counsel by placing the defendant under oath and asking
about the defendants financial status, or by requiring the
defendant to complete a signed sworn financial statement.
Criminal Rule 39.1(b)(1) provides that [a] defendant is eligible
for court-appointed counsel if the court finds that the total
financial resources available to the defendant are not sufficient
to pay allowable household expenses and the likely cost of
private representation through trial.8
Thus, it is clear that when a criminal defendant claims
he does not have the financial resources to hire an attorney,
Alaska law places a duty upon the court to put the defendant
under oath and determine, based on the totality of the
circumstances, the defendants financial status that is, whether
or not the defendant is indigent. We hold that the trial court
erred in concluding that Benson was not eligible for court-
appointed counsel based upon the fact that he had a substantial
amount of bail money refunded to him as part of a plea agreement
in another case and the fact that a substantial amount of bail
was posted for him in his current case. On the silent record
before us, it is possible that the money in question was not
available to Benson for the purpose of hiring an attorney, or was
not sufficient for that purpose as Benson claimed.
At the same time, we note that it is possible, as
Judge Hopwood found, that Benson did have the resources available
to hire an attorney and chose not to do so. As the Alaska
Supreme Court stated in Gottschalk v. State:9 It has been well
established that a non-indigent defendant who fails to retain an
attorney within a reasonable time before trial may be found to
have waived his right to counsel.10 But there is no indication
from the record that Benson was ever placed under oath and
questioned regarding any outstanding debts or other financial
obligations he may have had at the time the $11,500 in bail money
was returned to him. And while the $50,000 in bail money that
Bensons son posted in this case might well have indicated that
Benson had significant assets at his disposal, the American Bar
Association Standards for Criminal Justice make clear that a
defendants ability to post bail should not be determinative of
his or her eligibility for court-appointed counsel.11
We accordingly conclude that we must direct the
superior court to determine whether Benson was indigent at the
time of his trial that is, whether Benson did not have
sufficient assets, credit, or other means to provide for payment
of an attorney and all other necessary expenses of representation
without depriving [Benson] or [Bensons] dependants of food,
clothing, or shelter... .12 We further direct the superior
court to vacate Bensons convictions unless, after following these
procedures, it finds that, at the time of trial, Benson had the
financial resources available to hire counsel for his defense but
voluntarily waived counsel by choosing not do so.
One other point requires comment. The State points out
that there is no record, other than the log notes, of the pre-
trial proceeding before Judge Hopwood. It is true, as the State
points out, that as the appellant, Benson had the primary
obligation of seeing to it that all matters were included [in the
appellate record] which are essential to a decision of the
questions presented by the appeal.13 The Appellate Rules set out
a procedure for reconstructing a record when no electronic
recording of a hearing was made.14 The State argues that, since
Benson did not do this, and since it is possible that a
reconstruction of the pre-trial hearing in front of Judge Hopwood
would establish that Benson was not eligible for the appointment
of counsel, we should decide the case against Benson. We decline
to do this. First, there is no indication in the log notes that
Judge Hopwood ever followed any of the procedures set out in
Criminal Rule 39(b)(1) and AS 18.85.120. Furthermore, given the
fact that Benson consistently denied both before and after this
hearing that he had the financial ability to hire counsel and was
therefore being forced to represent himself, it seems unlikely
that he conceded at the pre-trial hearing that he actually did
have the ability to hire counsel. It does not seem appropriate
to assume that he made such a concession. Of course, on remand,
the hearing in front of Judge Hopwood could be reconstructed and
used by the court to determine whether, at the time of his trial,
Benson had the financial resources to hire counsel.
Conclusion
We remand this case to the superior court. The court
shall conduct proceedings consistent with this opinion and
report its findings to this court within 90 days of the issuance
of this decision. If the superior court, after conducting an
appropriate inquiry, finds that Benson was indigent, the court
shall vacate Bensons convictions and order a new trial. If, on
the other hand, the superior court finds that Benson was not
indigent and that he knowingly chose not to hire an attorney, we
will review the superior courts decision and consider Bensons
other arguments on appeal. We retain jurisdiction over this
case.
REMANDED.
_______________________________
1 AS 11.41.220(a)(1)(A).
2 AS 11.41.230(a)(3).
3 AS 11.61.210(a)(1).
4 AS 11.56.757(a).
5 AS 18.85.100; Alaska R. Crim. P. 39 and 39.1.
6 AS 18.85.120(a) and (b).
7 Alaska R. Crim. P. 39(b).
8 See also AS 18.85.170(4) (defining indigent person).
9 602 P.2d 448 (Alaska 1979).
10 Id. at 451.
11 American Bar Association, Standards for Criminal
Justice: Providing Defense Services, Standard 5-7.1 at 87 (3d ed.
1992). The Commentary to this Standard explains that [t]he
ability to post bond is rejected as a basis for denying counsel
because it requires the accused to choose between receiving legal
representation and the chance to be at liberty pending trial.
Since a persons freedom prior to trial often is essential to the
preparation of an adequate defense, placing the defendant in this
dilemma is arguably a denial of the effective assistance of
counsel. Id. at 88-89 (footnote omitted). See also AS
18.85.120(b).
12 AS 18.85.170. See also Criminal Rule 39.1.
13 McBride v. State, 368 P.2d 925, 927 n.11 (Alaska 1962),
modified on other grounds by Fresneda v. State, 483 P.2d 1011,
1017 (Alaska 1971).
14 Alaska R. App. P. 210(b)(8).
 |
| Case Law Statutes, Regs & Rules Constitutions Miscellaneous |
|
