BRUNER v. STATE EX REL. DIST. COURT, OKL. CTY.

BRUNER v. STATE EX REL. DIST. COURT, OKL. CTY.
1978 OK CR 65
581 P.2d 1314
Case Number: 0-77-857
Decided: 06/27/1978
Oklahoma Court of Criminal Appeals

Mary E. Bane, Oyler & Smith, Oklahoma City, for petitioner.

Larry Derryberry, Atty. Gen., Bill J. Bruce, Asst. Atty. Gen., Lee Schmidt, Legal Intern, Oklahoma City, for respondent.

ORDER ASSUMING JURISDICTION AND DIRECTING A HEARING

[581 P.2d 1315]

¶1 The question to be resolved in this case is where a defendant has retained counsel for appeal, can he be provided a trial transcript at State expense? This is a Petition for a Writ of Mandamus to compel the District Court of Oklahoma County to provide petitioner with a transcript at public expense after the petitioner's application was denied.

¶2 Title 20 O.S.Supp. 1977 § 106.4 [20-106.4], provides a transcript be furnished at State expense for the purpose of appealing a criminal conviction. The petitioner must present an affidavit to the trial court that he intends, in good faith, to appeal the conviction; that a transcript is necessary for the appeal; and that he "has not the means to pay for the transcript." The trial court must then make a finding as to the reasonableness of the petitioner's request and issue an appropriate order.

¶3 In the instant case, the petitioner filed a verified application in the District Court, stating that he lacked the funds to pay for the transcript, which the reporter estimated would cost $800.00; but the District Court denied the application without a hearing. The ruling of the District Court was based solely on the following finding:

"This court finds that the defendant was represented at trial on the above numbered case and on a companion case by private counsel and that defendant is represented on appeal by private counsel."

¶4 It is unquestionable that no person can be denied an effective appeal solely on the ground of lack of sufficient funds to properly prosecute the appeal. Griffin v. Illinois, 351 U.S. 12, 76 S. Ct. 585, 100 L. Ed. 891, 55 A.L.R.2d 1055 (1956); Jeffries v. State, 9 Okl.Cr. 573, 132 P. 823 (1913). The problem is determining when a person truly lacks the necessary funds. The assistance of counsel is vital in an appeal and, in many cases, a transcript of the trial is equally vital. If having retained counsel is legal justification for denying a transcript at state expense, then it would be equally justifiable to deny a court-appointed counsel on the ground that the defendant had been able to pay for the transcript. But clearly a person should not be forced to choose between having the assistance of counsel and having a transcript to aid in the appeal.

¶5 In Penny v. State ex rel. Edmiston, Okl.Cr., 547 P.2d 983 (1976), we said that one's "financial inability" to pay for a transcript is a prerequisite to the granting of a transcript at public expense and must be made on a case by case basis. However, while it is true that every defendant's financial condition is unique, we now believe that [581 P.2d 1316] guidelines would aid the District Courts of this State in ordering trial transcripts prepared at public expense for appeal purposes.

¶6 Obviously, the first step is the filing of a pauper's affidavit by the defendant, and since the affidavit is verified, any misrepresentation would be grounds to prosecute for perjury. For this reason, a sufficiently detailed affidavit should be taken as a prima facie showing of the defendant's financial condition, unless the District Attorney, the trial court, or some other interested party should challenge the affidavit and demand a hearing. At such a hearing, the burden would remain upon the defendant to establish his indigency. We have appended to this order a suggested form for such an affidavit.

¶7 While the determination of reasonableness is a matter within the discretion of the trial court, we emphasize that no single factor should alone be determinative. The court should take into consideration all the factors in the affidavit and, in addition, consider the designation of record specifically, the degree to which the defendant has attempted to narrow the record to the issues to be presented on appeal.

¶8 Where new counsel is used on appeal a full transcript may be necessary to enable the appellate counsel to identify the issues which merit appeal. A further consideration for the trial court to make is the ability of the defendant to make an appeal bond and the defendant's decision to do so. We hasten to add, however, a defendant should not be punished for his decision to make bond, since in many cases a defendant, by being out on bond, will be able to maintain an income.

¶9 In other cases, the trial court may find that a defendant has some financial resources, but not sufficient ones to meet the total cost of both counsel and transcript. If this be the case, the court may require the defendant to make a reasonable allocation of funds for the transcript and/or counsel.

¶10 If, after considering the affidavit and any testimony, the trial court decides to deny the request, it should issue an order incorporating the affidavit and setting forth in detail the reasons for the denial.

¶11 These guidelines can be adapted for use in all determinations of indigency, from the filing of an information to the issuance of the final mandate. A defendant requesting assistance from the court fund at any stage should be informed that his status as an indigent can change during the course of the proceedings and may be considered by the court from time to time.

¶12 In the instant case, we are of the opinion that the ruling of the trial court on the petitioner's application for a transcript at public expense was not based on full consideration of all relevant factors. For that reason, we find that the writ of mandamus should issue and that a new determination of indigency should be made.

¶13 It is therefore the order of this Court that the petition for a writ of mandamus should be, and the same is, hereby, GRANTED. The District Court, Oklahoma County, is ordered to make a new determination of the reasonableness of the petitioner's claim of indigency, consistent with the guidelines set forth in this order.

¶14 IT IS SO ORDERED.

¶15 WITNESS OUR HANDS, and the Seal of this Court, this 26th day of June, 1978.

HEZ J. BUSSEY, P.J.

TOM R. CORNISH, J.

TOM BRETT, J.

[581 P.2d 1317]

IN THE DISTRICT COURT OF ________________________ COUNTY, STATE OF OKLAHOMA

STATE OF OKLAHOMA, Plaintiff,

vs. Case No. ____________________

___________________, Defendant.

PAUPER'S AFFIDAVIT

Name ____________________________________________ Soc. Sec. # _____________

Address ___________________________________________________________________

Street                                    City                                           State

Home: Rent ( ) Own ( )

I. PERSONS IN HOUSEHOLD

                                                                                Is Person a Dependent

Spouse: _________________________________ Yes ( ) No ( )

Children: _______________________________ Yes ( ) No ( )

_______________________________ Yes ( ) No ( )

Others: _______________________________ Yes ( ) No ( )

Are you claimed as a dependent by a parent or guardian?

II. FINANCIAL STATUS: (Defendant or person(s) responsible for defendant's support)

A. Cash on hand $ ____________________________________________

Bank Accounts $ ___________________________________________

(checking or savings)                                         Bank

Bonds & Securities $ ______________________________________

All other possessions                                        Description

of value, including tax

refunds, notes, accts.

receivable, etc.) $ ______________________________________

Description

B. Equity in home and other real estate

___________________________________________________________

Real Property                                                    Value

C. ___________________________________________________________

Equity in Vehicles

D. Personal property (furniture, appliances, tools, equipment, etc.)

___________________________________________________________

Item                                                                  Market value less indebtedness

___________________________________________________________

Item                                                                  Market value less indebtedness

E. Give case number and county of any litigation you or your spouse have pending for recovery of money.

___________________________________________________________

Case No.                                                           County

Charge or open accounts ___________________________________

_____________________________________________

_____________________________________________

House payment or rent _____________________________________

Mortgagee/Landlord

_____________________________________

Balance                                   Amt. per mo.

Other Debts: ______________________________________________

Creditor                                   Balance

______________________________________________

F. Have you transferred or sold any assets since charges were filed in this case? Yes ( ) No ( ) If so, describe the buyer and the amount received ________________________________________________

_______________________________________________________________.

G. Have you retained counsel in this case or in any other pending criminal case? Yes ( ) No ( ) If so, state the case number, [581 P.2d 1318] court, attorney and amount paid to attorney for services _______

_______________________________________________________________.

H. If you have posted bond, who provided the funds for the bond?

I. Do you have any friends or relatives who are able and willing to assist you in hiring counsel and paying for transcripts? Yes ( ) No ( ) If so, have those persons been asked to help? Yes ( ) No ( )

J. If a friend or relative has given previous financial assistance in this case, but is no longer able or willing to do so, an affidavit to that effect from that person should be attached.

I further swear and affirm that I am without funds or other sources of income to pay an attorney or to pay for transcripts and costs associated with this case.

Subscribed and sworn to before me this ______ of ___________, 19__.

COURT CLERK

By: ________________________

Deputy