Opinion
Case No. 20010048-CA.
Filed September 26, 2002. (Not For Official Publication)
Appeal from the Third District, Salt Lake Department, The Honorable Sheila K. McCleve.
Isaac McDougall, Salt Lake City, for Appellant.
Augustus G. Chin, Salt Lake City, for Appellee.
Before Judges Billings, Greenwood, and Orme.
MEMORANDUM DECISION
[T]he factors that should be considered in deciding indigency matters . . . include:
employment status and earning capacity; financial aid from family or friends; financial assistance from state and federal programs; [the defendant's] necessary living expenses and liabilities; [the defendant's] unencumbered assets, or any disposition thereof, and borrowing capacity; and, the relative amount of court costs to be waived.
[Kelsey v. Hanson, 818 P.2d 590, 591-92 (Utah Ct.App. 1991) (per curiam)]. We commend this list as a general guide to those who must address indigency issues.
State v. Vincent, 883 P.2d 278, 283-84 (Utah 1994) (third and fourth alterations in original) (footnotes omitted).
The record in this case reveals that in making its determination of indigency, the trial court considered only that Griego had a job, made "[n]ot very much" at that job, and would soon fly from Utah to Arizona to attend school. This limited inquiry clearly does not meet the standard contemplated in Vincent. See id.; Orem City v. Bergstrom, 1999 UT App 350, ¶¶ 9-13, 992 P.2d 991.
The City asserts that because "Griego's responses [to the trial court's inquiry] were brief," he "failed to meet his burden of establishing his indigency." In fact, "it is the court's duty to advise the defendant of the financial information it needs to properly evaluate the claim of indigence." Orem City v. Bergstrom, 1999 UT App 350, ¶ 13, 992 P.2d 991. The trial court did not inform Griego of the information necessary for a proper indigency determination, and thus we do not fault Griego for his brief responses.
The factors to be considered in making indigency determinations are now outlined in Utah Code Ann. § 77-32-202(3)(b) (1999), which took effect on May 5, 1997, and substantially tracks the factors listed in Vincent. Compare Utah Code Ann. § 77-32-202(3)(b) (1999)withState v. Vincent, 883 P.2d 278, 283-84 (Utah 1994).
We therefore hold that "the trial court's inquiry into [Griego's] claim of indigence was deficient as a matter of law and violated his Sixth Amendment right to the assistance of counsel. Accordingly, we reverse and remand for a new trial." Bergstrom, 1999 UT App 350 at ¶ 12.
In Bergstrom, this court concluded that the appropriate remedy for a deficient indigency determination was a new trial. See 1999 UT App 350 at ¶ 12. The author, however, would be inclined to remand to the trial court for a redetermination of Griego's indigency as of February 20, 1997, his trial date. If, after a redetermination, the trial court was still of the view that Griego was not entitled to appointed counsel at the time of trial, his convictions would stand. Conversely, if the trial court determined that Griego was entitled to appointed counsel at the time of trial, his convictions would be vacated and a new trial ordered. This seems to the author to be the most sensible resolution where we are not sure whether Griego was in fact indigent and entitled to a new trial but are sure only that the trial court's inquiry was insufficient. However, this course appears to be foreclosed byBergstrom. See State v. Thurman, 846 P.2d 1256, 1269 (Utah 1993) (stating "the first decision by a court on a particular question of law governs later decisions by the same court").
It is worth noting, however, that we have followed this general approach in analogous circumstances. See, e.g., In re L.K., 2002 UT App 149, ¶¶ 1,14, 48 P.3d 244 (concluding trial court's inquiry into appellant's dissatisfaction with counsel was insufficient but remanding for further inquiry rather than new trial); State v. Vessey, 967 P.2d 960, 964 (Utah Ct.App. 1998) (remanding to trial court "to hold an evidentiary hearing to determine if defendant's complaints about his appointed counsel justified the appointment of substitute counsel"); State v. Ford, 793 P.2d 397, 405 (Utah Ct.App. 1990) (remanding "with instructions that an evidentiary hearing be held to consider whether and to what extent defendant was prejudiced by his bargaining with the state without counsel"), decision following remand, 818 P.2d 1052 (Utah Ct.App. 1991) (affirming reimposition of sentence).
WE CONCUR, EXCEPT AS TO FOOTNOTE 2, ON WHICH WE EXPRESS NO OPINION: Judith M. Billings, Associate Presiding Judge, and Pamela T. Greenwood, Judge.