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S1060................................................by JUDICIARY AND RULES
COURT PROCEEDINGS - Amends existing law to strike language providing for
the right to representation by counsel in certain post-conviction
proceedings; and to revise provisions applicable to an applicant's ability
to pay the expenses of counsel representation and court costs.
01/27 Senate intro - 1st rdg - to printing
01/28 Rpt prt - to Jud
]]]] LEGISLATURE OF THE STATE OF IDAHO ]]]]
Fifty-eighth Legislature First Regular Session - 2005
IN THE SENATE
SENATE BILL NO. 1060
BY JUDICIARY AND RULES COMMITTEE
1 AN ACT
2 RELATING TO REPRESENTATION BY COUNSEL; AMENDING SECTION 19-852, IDAHO CODE, TO
3 STRIKE LANGUAGE PROVIDING FOR THE RIGHT TO REPRESENTATION IN CERTAIN POST-
4 CONVICTION PROCEEDINGS AND TO MAKE TECHNICAL CORRECTIONS; AND AMENDING
5 SECTION 19-4904, IDAHO CODE, TO REVISE PROVISIONS APPLICABLE TO AN
6 APPLICANT'S ABILITY TO PAY THE EXPENSES OF REPRESENTATION AND COURT COSTS.
7 Be It Enacted by the Legislature of the State of Idaho:
8 SECTION 1. That Section 19-852, Idaho Code, be, and the same is hereby
9 amended to read as follows:
10 19-852. RIGHT TO COUNSEL OF NEEDY PERSON -- REPRESENTATION AT ALL STAGES
11 OF CRIMINAL AND COMMITMENT PROCEEDINGS -- PAYMENT. (a) A needy person who is
12 being detained by a law enforcement officer, who is confined or is the subject
13 of hospitalization proceedings pursuant to sections 18-212, 18-214, 66-322,
14 66-326, 66-329 or 66-409, Idaho Code, or who is under formal charge of having
15 committed, or is being detained under a conviction of, a serious crime, is
16 entitled:
17 (1) tTo be represented by an attorney to the same extent as a person hav-
18 ing his own counsel is so entitled; and
19 (2) tTo be provided with the necessary services and facilities of repre-
20 sentation (including investigation and other preparation). The attorney,
21 services, and facilities and the court costs shall be provided at public
22 expense to the extent that the person is, at the time the court determines
23 need, unable to provide for their payment.
24 (b) A needy person who is entitled to be represented by an attorney under
25 subsection (a) of this section is entitled:
26 (1) tTo be counseled and defended at all stages of the matter beginning
27 with the earliest time when a person providing his own counsel would be
28 entitled to be represented by an attorney and including revocation of pro-
29 bation;
30 (2) tTo be represented in any appeal;
31 (3) tTo be represented in any other post-conviction or post-commitment
32 proceeding that the attorney or the needy person considers appropriate,
33 unless the court in which the proceeding is brought determines that it is
34 not a proceeding that a reasonable person with adequate means would be
35 willing to bring at his own expense and is therefore a frivolous proceed-
36 ing.
37 (c) A needy person's right to a benefit under subsection (a) or (b) of
38 this section is unaffected by his having provided a similar benefit at his own
39 expense, or by his having waived it, at an earlier stage.
40 SECTION 2. That Section 19-4904, Idaho Code, be, and the same is hereby
41 amended to read as follows:
2
1 19-4904. INABILITY TO PAY COSTS. (1) If the applicant is unable to pay
2 court costs, and expenses of representation, including stenographic, printing,
3 witness fees and expenses, and legal services, these costs and expenses, and a
4 court-appointed attorney may be made available to the applicant in the prepa-
5 ration of the application, in the trial court, and on appeal, and paid, on
6 order of the district court, by the county in which the application is filed.
7 (2) If an evidentiary hearing is required, the trial judge shall appoint
8 counsel if the applicant is unable to pay the expenses of representation. The
9 court may appoint an attorney to represent an applicant prior to the decision
10 on whether the applicant is entitled to an evidentiary hearing only after a
11 showing of exceptional circumstances necessitating such appointment in the
12 interests of justice.
13 (3) A needy applicant who receives the services of an attorney provided
14 by the county may be required by the court to reimburse the county for all or
15 a portion of the cost of those services. The immediate inability of the needy
16 applicant to pay the reimbursement shall not, in and of itself, restrict the
17 court from ordering reimbursement.
STATEMENT OF PURPOSE
RS 14549C1
This proposed legislation will amend Section 19-852 to bring it into
conformity with the 2001 amendment to Section 19-853(b) and amend Section 19-
4904 to clarify the intent of the Legislature to limit the appointment of
counsel at public expense in civil collateral attacks on convictions to those
limited cases in which an evidentiary hearing is required on the merits of an
application or after a showing of exceptional circumstances necessitating such
appointment and providing for reimbursement to the county for the cost of such
attorney services. These amendments are to clarify the law in light of the
Idaho Supreme Court's decision in Charboneau v. State, 2004 WL 2715826, slip
op. at pp.5-6 (Idaho November 23, 2004), which requires the appointment of
counsel whenever the post-conviction application "alleges facts to raise the
possibility of a valid claim" despite the court's recognition that the
"ineffective assistance of counsel claim could be described as frivolous."
The amendment to Section 19-4904 is intended to bring the Idaho standard for
appointment of post-conviction counsel into conformity with the standard for
appointment of counsel in federal habeas corpus proceedings challenging state
convictions and sentences as of the date of enactment in Idaho. The federal
habeas corpus standards recognize there is no constitutional right to the
appointment of counsel in collateral challenges to criminal convictions. The
appointment of counsel in federal habeas proceedings is also governed by Rule
8(c) of the Rules Governing Section 2254 Cases in the United States District
Courts. Rule 8(c) requires the appointment of counsel pursuant to 18 U.S.C.
3006A(g) "[i]f an evidentiary hearing is required." If an evidentiary hearing
is not required, the court, exercising its discretion, may appoint counsel "at
any stage of the case if the interest of justice so requires." Under 28
U.S.C. 1915(e)(1) the district court has discretionary authority to appoint
counsel only after a showing of "exceptional circumstances." Terrell v.
Brewer, 935 F.2d 1015, 1017 (9th Cir. 1990). In determining whether
"exceptional circumstances" exist, the court must consider the "likelihood of
success on the merits and the ability of the petitioner to articulate his
claims pro se in light of the complexity of the legal issues involved." Id.
The legislation will clarify that appointment of counsel in civil post-
conviction proceedings is discretionary. The legislation eliminates the
appointment of counsel in frivolous and non-meritorious cases.
FISCAL NOTE
The fiscal impact is positive. County funds, which now must be spent on
appointment of counsel in frivolous and non-meritorious civil post-conviction
cases, will be preserved for those cases meriting a trial or in exceptional
circumstances.
Contact
Name: William A. von Tagen
Office of The Attorney General
Phone: 334-4140
Name: Stephen Bywater
Office of the Attorney General
Phone: 332-3543
STATEMENT OF PURPOSE/FISCAL NOTE S 1060