HF 988

as introduced - 87th Legislature (2011 - 2012) Posted on 03/09/2011 09:55am

A bill for an act
relating to public defenders; modifying provisions providing for representation
by a public defender; amending Minnesota Statutes 2010, sections 609.131,
subdivision 1; 611.16; 611.17; 611.18; 611.20, subdivision 4; repealing
Minnesota Statutes 2010, section 611.20, subdivision 6.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2010, section 609.131, subdivision 1, is amended to read:

Subdivision 1.

General rule.

Except as provided in subdivision 2, an alleged
misdemeanor violation must be treated as a petty misdemeanor if the prosecuting attorney
believes that it is in the interest of justice that the defendant not be imprisoned if convicted
and certifies that belief to the court at or before the time of arraignment or pretrial hearing,
and the court approves of the certification motion. Prior to the appointment of a public
defender to represent a defendant charged with a misdemeanor, the court shall inquire of
the prosecutor whether the prosecutor intends to certify the case as a petty misdemeanor.
The defendant's consent to the certification is not required. When an offense is certified
as a petty misdemeanor under this section, the defendant's eligibility for court-appointed
counsel must be evaluated as though the offense were a misdemeanor defendant is not
eligible for the appointment of a public defender.

Sec. 2.

Minnesota Statutes 2010, section 611.16, is amended to read:

611.16 REQUEST FOR APPOINTMENT OF PUBLIC DEFENDER.

Any person described in section 611.14 or any other person entitled by law to
representation by counsel, may at any time request the court in which the matter is pending,
or the court in which the conviction occurred, to appoint a public defender to represent the
person. In a proceeding defined by clause (2) of section 611.14, clause (2), application for
the appointment of a public defender may also be made to a judge of the Supreme Court.

Sec. 3.

Minnesota Statutes 2010, section 611.17, is amended to read:

611.17 FINANCIAL INQUIRY; STATEMENTS; CO-PAYMENT;
STANDARDS FOR DISTRICT PUBLIC DEFENSE ELIGIBILITY.

(a) Each judicial district must screen requests for representation by the district public
defender. A defendant is financially unable to obtain counsel if:

(1) the defendant, or any dependent of the defendant who resides in the same
household as the defendant, receives means-tested governmental benefits; or is charged
with a misdemeanor and has an annual income not greater than 125 percent of the poverty
guidelines updated periodically in the Federal Register by the United States Department of
Health and Human Services under the authority of United States Code, title 42, section
9902(2);

(2) the defendant is charged with a gross misdemeanor and has an annual income
not greater than 150 percent of the poverty guidelines updated periodically in the Federal
Register by the United States Department of Health and Human Services under the
authority of United States Code, title 42, section 9902(2);

(3) the defendant is charged with a felony and has an annual income not greater than
175 percent of the poverty guidelines updated periodically in the Federal Register by the
United States Department of Health and Human Services under the authority of United
States Code, title 42, section 9902(2); or

(2) (4) the court makes a written finding that the defendant, through any combination
of liquid assets and current income, would be unable to pay the reasonable costs charged
by private counsel in that judicial district for a defense of the same matter without causing
substantial hardship to the defendant or the defendant's family.

(b) Upon a request for the appointment of counsel, the court shall make an
appropriate inquiry into the determination of financial circumstances eligibility under
paragraph (a) of the applicant, who shall submit a financial statement under oath or
affirmation setting forth the applicant's assets and liabilities, including the value of any
real property owned by the applicant, whether homestead or otherwise, less the amount of
any encumbrances on the real property, the source or sources of income, and any other
information required by the court. The applicant shall be under a continuing duty while
represented by a public defender to disclose any changes in the applicant's financial
circumstances that might be relevant to the applicant's eligibility for a public defender.
The state public defender shall furnish appropriate forms for the financial statements,
which must be used by the district courts throughout the state. The forms must contain
conspicuous notice of the applicant's continuing duty to disclose to the court changes in
the applicant's financial circumstances. The forms must also contain conspicuous notice
of the applicant's obligation to make a co-payment for the services of the district public
defender, as specified under paragraph (c). The information contained in the statement
shall be confidential and for the exclusive use of the court and the public defender
appointed by the court to represent the applicant except for any prosecution under
section 609.48. A refusal to execute the financial statement or produce financial records
constitutes a waiver of the right to the appointment of a public defender. The court shall
not appoint a district public defender to a defendant who is financially able to retain
private counsel but refuses to do so.

An inquiry to determine financial eligibility of a defendant for the appointment of
the district public defender shall be made whenever possible prior to the court appearance
and by such persons as the court may direct. This inquiry may be combined with the
prerelease investigation provided for in Minnesota Rule of Criminal Procedure 6.02,
subdivision 3. In no case shall the district public defender be required to perform this
inquiry or investigate the defendant's assets or eligibility. The court has the sole duty to
conduct a financial inquiry. The inquiry must include the following:

(1) the liquidity of real estate assets, including the defendant's homestead;

(2) any assets that can be readily converted to cash or used to secure a debt;

(3) the determination of whether the transfer of an asset is voidable as a fraudulent
conveyance; and

(4) the value of all property transfers occurring on or after the date of the alleged
offense. The burden is on the accused to show that the accused is financially unable
to afford counsel. Defendants who fail to provide information necessary to determine
eligibility shall be deemed ineligible. The court must not appoint the district public
defender as advisory counsel.

(c) Upon disposition of the case, an individual who has received public defender
services shall pay to the court a $75 co-payment for representation provided by a public
defender, unless the co-payment is, or has been, reduced in part or waived by the court.

The co-payment must be credited to the general fund. If a term of probation is
imposed as a part of an offender's sentence, the co-payment required by this section must
not be made a condition of probation. The co-payment required by this section is a civil
obligation and must not be made a condition of a criminal sentence.

(d) The court shall not appoint a public defender to a defendant who is financially
able to retain counsel but refuses to do so, refuses to execute the financial statement or
refuses to provide information necessary to determine financial eligibility under this
section, or waives appointment of a public defender under section 611.19.

Sec. 4.

Minnesota Statutes 2010, section 611.18, is amended to read:

611.18 APPOINTMENT OF PUBLIC DEFENDER.

If it appears to a court that a person requesting the appointment of counsel satisfies
the requirements of this chapter, the court shall order the appropriate public defender to
represent the person at all further stages of the proceeding through appeal, if any. For a
person appealing from a conviction, or a person pursuing a postconviction proceeding
and who has not already had a direct appeal of the conviction, according to the standards
of sections 611.14, clause (2), and 611.25, subdivision 1, paragraph (a), clause (2), the
state chief appellate public defender shall be appointed. For a person covered by section
611.14, clause (1), a (3), or (4), the chief district public defender shall be appointed to
represent that person. If (a) conflicting interests exist, (b) the district public defender for
any other reason is unable to act, or (c) the interests of justice require, the state public
defender may be ordered to represent a person. When the state public defender is directed
by a court to represent a defendant or other person, the state public defender may assign
the representation to any district public defender. If at any stage of the proceedings,
including an appeal, the court finds that the defendant is financially unable to pay counsel
whom the defendant had retained, the court may appoint the appropriate public defender
to represent the defendant, as provided in this section. Prior to any court appearance, a
public defender may represent a person accused of violating the law, who appears to be
financially unable to obtain counsel, and shall continue to represent the person unless it
is subsequently determined that the person is financially able to obtain counsel. The
representation may be made available at the discretion of the public defender, upon the
request of the person or someone on the person's behalf. Any law enforcement officer may
notify the public defender of the arrest of any such person.

Sec. 5.

Minnesota Statutes 2010, section 611.20, subdivision 4, is amended to read:

Subd. 4.

Employed defendants; ability to pay.

(a) A court shall order a defendant
who is employed when a public defender is appointed, or who becomes employed while
represented by a public defender, or who is or becomes able to make partial payments
for counsel, to reimburse the state for the cost of the public defender. If reimbursement
is required under this subdivision, the court shall order the reimbursement when a
public defender is first appointed or as soon as possible after the court determines that
reimbursement is required. The court may accept partial reimbursement from the
defendant if the defendant's financial circumstances warrant a reduced reimbursement
schedule. The court may consider the guidelines in subdivision 6 in determining a
defendant's reimbursement schedule. If a defendant does not agree to make payments,
the court may order the defendant's employer to withhold a percentage of the defendant's
income to be turned over to the court. The percentage to be withheld may be determined
under subdivision 6 In determining the percentage to be withheld, the court shall consider
the income and assets of the defendant based on the financial statement provided by the
defendant when applying for the public defender under section 611.17.

(b) If a court determines under section 611.17 that a defendant is financially unable to
pay the reasonable costs charged by private counsel due to the cost of a private retainer fee,
the court shall evaluate the defendant's ability to make partial payments or reimbursement.

Sec. 6. REPEALER.

Minnesota Statutes 2010, section 611.20, subdivision 6, is repealed.