Rule 39.1. Determining Eligibility for Court- Appointed Counsel

(a) Scope of Application. This rule specifies the procedure courts shall follow to assess whether a defendant is eligible for court-appointed counsel in a criminal case. (b) Eligibility for Appointment.1 (1) Standard. 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. (2) Exception. The court may determine that a defendant is ineligible for court-appointed counsel under AS 18.85.170(4) if the defendant has disposed of assets in order to qualify for appointed counsel. (c) Financial Resources Defined. (1) Resources to be Considered. In assessing the defendant’s ability to pay the likely cost of private representation through trial, the court shall consider all Rule 39.1 resources available to the defendant, including all sources of expected income, cash, the value of assets readily convertible to cash, and credit or borrowing ability. (2) Parents’ Resources. If the defendant is a minor or an adult who cannot live independently, the court shall consider the resources of both the defendant and the defendant’s parents, unless the parents were victims of the alleged offense or the court finds other good cause to treat their resources as being unavailable to the defendant. (3) Income. Parents’ Resources. Income includes all categories of income listed in Section II, Parts A and B of the Commentary to Civil Rule 90.3, including permanent fund dividends. (4) Cash. Cash includes cash on hand and accounts in financial institutions. All savings should be considered, except where the use of the savings would deprive the defendant or the defendant’s family of food, clothing, shelter, or necessary medical care. (5) Assets. The court shall consider the value of all assets that are readily convertible to cash, other than health aids, clothing, and ordinary household furnishings. With the following exceptions, in valuing an asset, the court shall consider either the amount the defendant would realize if the asset were sold or the amount the defendant could borrow using the asset as collateral, whichever is greater. (A) The court shall consider the loan value of tools and equipment essential to employment or to subsistence activity. Tools and equipment are essential only if the defendant could not earn a living or provide basic necessities without them. If the defendant cannot borrow against these assets while continuing to have use of them, the court shall disregard their value in calculating the defendant’s available resources. (B) In valuing the defendant’s principal residence, the court shall consider the entire loan value or the amount of the sale value that exceeds the homestead exemption allowed under the Alaska Exemptions Act.2 If the defendant cannot borrow against the residence and would realize less than the homestead exemption amount if the residence were sold, the court shall disregard the value of the residence in calculating the defendant’s available resources. (C) In assessing the loan value of essential tools and equipment and the principal residence, the court shall consider only the amount the defendant can realistically afford to repay. (6) Credit. Available credit includes amounts available on credit cards and amounts that can be borrowed against life insurance policies or from pension or savings plans. In assessing available credit, the court shall consider only the amount the defendant can realistically afford to repay. (d) Likely Cost of Private Representation. (1) For purposes of this rule, the following amounts represent the likely cost of private representation through trial: Estimated Total Cost of Representation Misdemeanor $ 2,000 C Felony 5,000 B Felony 7,500 A or Unclassified Felony 20,000 (2) The court may adjust these amounts under the following circumstances: (A) If the court finds that the scheduled amount differs from the amount charged by local attorneys, the court may use the amount charged locally. (B) If the court finds that no local attorneys are available to handle the case, the court may adjust the scheduled amount to include the additional fees and travel costs that an out-of- town attorney would charge. (C) If the court finds that the case has special characteristics that are likely to increase the cost of private representation, such as the need for expert witnesses, special investigations, or expensive tests, the court may adjust the scheduled amount to include this additional expense. (3) In assessing a defendant’s ability to pay the likely cost of private representation, the court should assume that at least 50 percent of the likely fee must be paid immediately and that the total fee must be paid within four months. (e) Determining Eligibility. The 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 defendant’s financial status, or by requiring the defendant to complete a signed sworn financial statement, subject to penalties for perjury. A defendant who requests appointed counsel must execute a general waiver authorizing the release of financial information to the court as required by AS 18.85.120. (f) Presumptive Eligibility. The court may appoint counsel without further inquiry if: (1) the defendant currently receives public assistance benefits through a state or federal program for indigent persons, such as Aid to Families with Dependent Children, the Alaska Temporary Assistance Program, Adult Public Assistance, General Relief, Food Stamps, Medicaid, or Supplemental Security Income (SSI); (2) counsel was appointed for the defendant within the past twelve months based on an examination of the defendant’s financial circumstances, and the defendant’s financial condition has not significantly improved; or (3) the gross annual income available to the defendant is less than the adjusted federal poverty guidelines amount for the defendant’s household size, and other financial resources (cash, assets, and credit) available to the defendant are worth less than 50 percent of the amount shown in (d)(1) (the likely cost of private representation through trial). (g) Other Eligibility. If the court does not find that the defendant is presumptively eligible under paragraph (f), the court shall conduct an inquiry sufficient to determine whether the defendant is eligible for court-appointed counsel under the standard stated in paragraph (b). The court may make this determination based on the information then available to the court or, when appropriate, may (1) require the defendant to submit a completed financial resources affidavit with supporting documentation of income; (2) require the defendant to submit information or documentation concerning particular assets or expenses; (3) require the defendant to appear at a representation hearing or a pretrial services interview; or (4) require the defendant to make reasonable efforts to retain private counsel and to report these efforts to the court orally or in writing. (h) Allowable Household Expenses. (1) Allowable Expenses. The following household expenses are allowable to the extent they are reasonable: (A) housing; (B) utilities; (C) food; (D) health care; (E) child care; (F) insurance; (G) transportation (for one vehicle for each person whose income is considered); (H) minimum loan and credit card payments; and (I) mandatory child support and other court-imposed obligations; and (J) other expenses that the court deems essential. (2) Alternative to Calculating Actual Expenses. As an alternative to calculating actual household expenses, the court may assume that these expenses are approximately equal to the adjusted federal poverty guidelines amount for the defendant’s household size. (3) Expenses Paid by Other Persons. The expenses described in (h)(1) and (h)(2) are allowable only to the extent they are paid (or were supposed to be paid) by the defendant. If another person, such as a spouse, relative, or roommate, pays some or all of the household expenses, the court shall disregard the portion of the expenses paid by that person. If the defendant is married, the court should assume, absent a showing of good cause, that each spouse pays an amount proportionate to that spouse’s relative income. (i) Adjusted Federal Poverty Guidelines. The “adjusted federal poverty guidelines amount” is the federal poverty guidelines amount for Alaska increased by the geographic cost-of-living adjustment established in AS 39.27.020 for the court location nearest the defendant’s residence. (j) Responsibilities of Administrative Director. The administrative director shall (1) publish annually an administrative bulletin specifying the adjusted federal poverty guidelines amount for each court location;3 and (2) periodically review the efficacy of the appointment procedure established by this rule. Editor’s notes. Notes 1 AS 18.85.170(4) defines “indigent person” for purposes of public defender appointments as “a person who, at the time need is determined, does not have sufficient assets, credit, or other means to provide for payment of an attorney and all other necessary expenses of representation without depriving the party or the party’s dependents of food, clothing, or shelter and who has not disposed of any assets since the commission of the offense with the intent or for the purpose of establishing eligibility for assistance under this chapter.” 2 For the current homestead exemption amount, See 8 AAC 95.030. This Department of Labor regulation, rather than AS 09.38.010, establishes the amount of the homestead exemption. See AS 09.38.115. 3 See Admin. Bulletin 65 See Admin.Rule 12 for the procedure for appointment of counsel at public expense. Note (effective nunc pro tunc to June 19, 2012): Chapter 72, section 6, SLA 2012 (SB 135), effective June 19, 2012, amended Criminal Rule 39.1(e) relating to the appointment of counsel for persons accused of crimes, as reflected in section 2 of this Order. The changes to Criminal Rule 39.1(e) are adopted for the sole reason that the legislature has mandated the amendments.