JAMES ARTHUR TINSLEY v. COMMONWEALTH OF KENTUCKY
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RENDERED:
FEBRUARY 24, 2006; 2:00 p.m.
TO BE PUBLISHED
Commonwealth of Kentucky
Court of Appeals
NO. 2005-CA-000361-MR
JAMES ARTHUR TINSLEY
v.
APPELLANT
APPEAL FROM HARDIN CIRCUIT COURT
HONORABLE T. STEVEN BLAND, JUDGE
HONORABLE KELLY MARK EASTON, JUDGE1
ACTION NO. 03-CR-00269
COMMONWEALTH OF KENTUCKY
APPELLEE
OPINION
REVERSING AND REMANDING
** ** ** ** ** ** ** **
BEFORE: BARBER AND McANULTY, JUDGES; MILLER, SENIOR JUDGE.2
MILLER, SENIOR JUDGE:
James Arthur Tinsley appeals from a
“Final Judgment and Order Imposing Sentence” of the Hardin
Circuit Court entered upon a jury verdict.
Tinsley contends that the trial court erred by failing
to appoint counsel to represent him in the trial proceedings.
1
Judge Bland presided at the May 2004 jury trial in this matter; however,
Judge Easton signed the Judgment and Order Imposing Sentence from which this
appeal is taken.
2
Senior Judge John D. Miller sitting as Special Judge by assignment of the
Chief Justice pursuant to Section 110(5)(b) of the Kentucky Constitution and
Kentucky Revised Statute 21.580.
Because the trial court improperly denied appointment of counsel
based upon the mere fact that a property bond had been posted to
secure Tinsley’s release following his indictment; did not apply
the factors to determine Tinsley's indigency as provided in
KRS 31.120; and, because it is otherwise not determinable from
the record whether Tinsley was in fact indigent, we reverse and
remand.
On May 13, 2003, Tinsley was arrested upon a criminal
complaint for the offense of first-degree trafficking in a
controlled substance (cocaine).
At his subsequent arraignment,
the Hardin District Court appointed a public defender from the
Department of Public Advocacy (DPA) to represent Tinsley.
plea of not guilty was entered.
A
Noting that Tinsley had other
pending drug trafficking indictments, the district court set his
bond at $75,000.00 cash, or $150,000.00 secured, and assigned
the case for a preliminary hearing on May 19, 2003.
At the
May 19, 2003, preliminary hearing, the district court reduced
Tinsley’s bond to $5,000.00 cash.
Tinsley subsequently posted a
$5,000.00 cash bond to secure his release.
On June 10, 2003, the Hardin County Grand Jury
returned a two-count indictment against Tinsley charging him
with first-degree trafficking in a controlled substance, second
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offense,3 and possession of drug paraphernalia.4
Both offenses
were alleged to have been committed on June 12, 2002.
Tinsley appeared for arraignment in circuit court on
June 24, 2003.
At that time he appeared with DPA counsel.
The
DPA counsel, however, informed the court that Tinsley had
private counsel representing him on other cases, but that the
DPA would accept responsibility for representing Tinsley “at
this time.”
Over Tinsley’s objection, the circuit court reset
his bond at $50,000.00 secured.
By order dated July 9, 2003,
Tinsley’s $5,000.00 cash bond was ordered released and returned
to him.
On August 5, 2003, one Regina Thompson posted a
$50,000.00 bail bond secured by a lien upon real estate owned by
her.
Tinsley was thereupon released pending trial.
The matter
was set for pretrial conference to be held on September 2, 2003.
At the September 2, 2003, pretrial conference, the
public defender informed the circuit court that appellant was
out on a $50,000.00 property bond and no longer qualified for
public defender services.
The trial court inquired of Tinsley
whether he was out on a property bond, and he responded
affirmatively.
The trial court then advised Tinsley that the
public defender had informed the court that he no longer
qualified under state law for representation by the DPA because
3
KRS 218A.1412.
4
KRS 218A.500(2).
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he had posted the bail bond, and that the Department was asking
to be relieved as the appellant’s counsel.
continued until October 22, 2003.
The matter was
The trial court instructed
Tinsley that he needed to hire private counsel and be in court
on that date.
The trial court further informed Tinsley that the
court was allowing the DPA to withdraw as counsel because he no
longer met the guidelines to be represented by the agency.
On October 22, 2003, the trial court called Tinsley’s
case.
The trial court questioned Tinsley concerning whether he
had retained counsel.
Tinsley responded that he had not.
The
trial court questioned Tinsley concerning what efforts he had
made to obtain counsel.
Tinsley responded that he had not
obtained counsel because he could not afford to do so.
The
Commonwealth then informed the trial court that Tinsley had
private counsel in other cases.
The trial court informed
Tinsley that it had already been determined that he did not
qualify for representation by the DPA.
The trial court further
informed him that he had been given a reasonable amount of time
to obtain counsel, that he had the right to represent himself,
and that he may do so.
The court further informed Tinsley that
it was unwise to represent himself, but that he did not qualify
for appointment of a public defender and that one could not be
appointed to represent him.
The case was continued for trial on
May 13, 2004.
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On May 13, 2004, the case was called for trial.
Tinsley appeared without counsel.
The court informed Tinsley
that it would be necessary for him to represent himself since he
had not obtained an attorney.
The court inquired of appellant
whether he understood that; Tinsley responded, “Not really, Your
Honor.”
The court then once again inquired of appellant
regarding whether he attempted to make arrangements to retain
counsel.
Tinsley responded that he had no money to do so.
The trial court informed Tinsley that his case was
going to have to go to trial, that the case was two-years old,
that appellant had plenty of advance notice regarding the trial
date, that he was not qualified for a public defender, and that
if he was not going to get an attorney, his only option was to
represent himself.
Tinsley responded that he did have money at
one time, but that he had been required to pay child support in
order to stay out of jail, and that, along with other events,
resulted in a depletion of his money.
Tinsley further informed
the trial court that the “child support people” were going to
indict him if he did not pay his child support.
The court
observed that the matter could not be postponed indefinitely.
The court informed Tinsley that all of the witnesses were there
for trial, including the “laboratory people” who had come from
out of town.
Tinsley responded that he needed to get an
attorney in order to make motions to suppress and so forth.
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The
court informed Tinsley that he could make motions himself and
that the court was ready for jury selection to commence.
The
trial ensued.
As previously noted, Tinsley was convicted of firstdegree possession of a controlled substance.
The jury
recommended a sentence of five-years imprisonment.
Final
judgment and sentence was subsequently entered consistent with
the jury’s verdict.
This appeal followed.
Tinsley contends that he was in fact indigent and the
trial court erred by determining that he was ineligible for
appointment of counsel; by failing to appoint counsel; and by
compelling him to proceed to trial without counsel.
It is now elementary that an indigent criminal
defendant is entitled to appointment of counsel in any
proceeding in which he could be sentenced to a term of
imprisonment.
U.S. Const., Amendment 6; Ky. Const., § 11;
Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799
(1963); Scott v. Illinois, 440 U.S. 367, 99 S.Ct. 1158, 59
L.Ed.2d 383 (1979); Argersinger v. Hamlin, Leon County, Florida,
407 U.S. 25, 92 S.Ct. 2006, 32 L.Ed.2d 530 (1972); Boyd v.
Dutton, 405 U.S. 1, 92 S.Ct. 759, 30 L.Ed.2d 755 (1972); Jenkins
v. Commonwealth, 491 S.W.2d 636, 638 (Ky. 1973); Hill v.
Commonwealth, 125 S.W.3d 221, 225 (Ky. 2004).
We note that this
right was recognized in Kentucky well before Gideon.
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See
Hart v. Commonwealth, 296 S.W.2d 212, 214 (Ky. 1956) (It is the
duty of a trial court to assign counsel to defend an accused
when the accused makes such a request and a necessary showing in
support thereof (citing Moore v. Commonwealth, 298 Ky. 14, 181
S.W.2d 413 (1944) and Hamlin v. Commonwealth, 287 Ky. 22, 152
S.W.2d 297 (1941)).
“The exact point on the economic scale at which a
defendant becomes indigent and therefore entitled to have
counsel furnished is not subject to precise measurement but must
be determined in the case of each individual in the light of all
pertinent circumstances.
The general inquiry must be directed
to discover whether the defendant is able to provide for his own
defense.
In making that determination the court may consider
such factors as income, property owned, outstanding obligations
and the number and ages of his dependents.
factors which have relevancy to the issue.”
There may be other
Jenkins v.
Commonwealth, 491 S.W.2d 636, 638 (Ky. 1973).
Relevant to the issue at hand are Kentucky Rules of
Civil Procedure (RCr) 3.05(2) and several statutes contained in
KRS Chapter 31.5
As a preliminary matter, we set forth these
5
KRS Chapter 31 has been described as “a comprehensive network of statutes
enacted by the legislature in response to the dilemma created by both state
and federal constitutional guarantees of effective representation for
indigent defendants. The choice was clear: the state either must see that a
defendant is provided counsel or it cannot proceed with a prosecution.”
Pillersdorf v. Department of Public Advocacy, 890 S.W.2d 616, 618 (Ky. 1994).
(Citations omitted.)
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authorities.
RCr 3.05(2) provides as follows:
If the crime of which the defendant is
charged is punishable by confinement and the
defendant is financially unable to employ
counsel, the judge shall appoint counsel to
represent the defendant unless he or she
elects to proceed without counsel. The
defendant has the burden of first
establishing his or her indigency before
counsel may be appointed. If the defendant
demonstrates that he or she is a needy
person as defined in KRS 31.120 and the
court so concludes, then the appointment
shall continue for all future stages of the
criminal proceeding, including appeal. Such
appointment may be terminated by the court
in which the proceeding is pending at any
time upon a showing that defendant is able
to employ counsel.
KRS 31.110 provides, in relevant part, as follows:
(1) A needy person who is being detained by
a law enforcement officer, on suspicion of
having committed, or who is under formal
charge of having committed, or is being
detained under a conviction of, a serious
crime . . . is entitled:
(a) To be represented by an attorney to the
same extent as a person having his own
counsel is so entitled; and
(b) To be provided with the necessary
services and facilities of representation
including investigation and other
preparation. The courts in which the
defendant is tried shall waive all costs.
(2) A needy person who is entitled to be
represented by an attorney under
subsection (1) of this section is entitled:
(a) To be counseled and defended at all
stages of the matter beginning with the
earliest time when a person providing his
own counsel would be entitled to be
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represented by an attorney and including
revocation of probation or parole;
(b) To be represented in any appeal; and
(c) To be represented in any other postconviction, or . . . post-disposition
proceeding that the attorney and the needy
person considers appropriate. However, if
the counsel appointed in such postconviction, or . . . post-disposition
remedy, with the court involved, determines
that it is not a proceeding that a
reasonable person with adequate means would
be willing to bring at his own expense,
there shall be no further right to be
represented by counsel under the provisions
of this chapter.
(3) A needy person's right to a benefit
under subsection (1) or (2) of this section
is not affected by his having provided a
similar benefit at his own expense, or by
his having waived it, at an earlier stage.
KRS 31.120 provides, in relevant part, as follows:
(1) The determination of whether a person
covered by KRS 31.110 is a needy person
shall be deferred no later than his first
appearance in court . . . . Thereafter, the
court concerned shall determine, with
respect to each step in the proceedings,
whether he is a needy person. However,
nothing herein shall prevent appointment of
counsel at the earliest necessary proceeding
at which the person is entitled to counsel,
upon declaration by the person that he is
needy under the terms of this chapter. In
that event, the person involved shall be
required to make reimbursement for the
representation involved if he later is
determined not a needy person under the
terms of this chapter.
(2) In determining whether a person is a
needy person and in determining the extent
of his . . . inability to pay, the court
concerned shall consider such factors as:
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(a)
(b)
(c)
(d)
(e)
(f)
(g)
(h)
(i)
(j)
(k)
(l)
(m)
Income;
Source of income;
Property owned;
Number of motor vehicles owned and in
working condition;
Other assets;
Outstanding obligations;
The number and ages of his or her
dependents;
The poverty level income guidelines
compiled and published by the United
States Department of Labor;
Complexity of the case;
Amount a private attorney charges for
similar services;
Amount of time an attorney would
reasonably spend on the case; and
Payment of money bail, other than a
property bond of another, whether
deposited by the person or another, to
secure the person's release from
confinement on the present charge of
which he or she stands accused or
convicted; and
Any other circumstances presented to the
court relevant to financial status.
Release on bail, or any other method of
release provided in KRS Chapter 431, shall
not necessarily prevent him from being a
needy person. In each case, the person
. . . subject to the penalties for perjury,
shall certify by affidavit of indigency
which shall be compiled by the pretrial
release officer, as provided under
KRS Chapter 431 and Supreme Court Rules or
orders promulgated pursuant thereto, the
material factors relating to his ability to
pay in the form the Supreme Court
prescribes. (Emphasis added.)
KRS 31.100(3) defines a needy person or indigent person as
follows:
"Needy person" or "indigent person" means:
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(a) A person eighteen (18) years of age or
older or emancipated minor under the age of
eighteen (18) who, at the time his need is
determined, is unable to provide for the
payment of an attorney and all other
necessary expenses of representation;
This proceeding veered off-course at the September 2,
2003, pretrial conference when DPA counsel notified the trial
court that the Department sought to withdraw from defending
Tinsley for the reason that he no longer qualified for
representation because he had been released upon the posting of
a $50,000.00 property bond.
The trial court agreed with the
Department, stating that Tinsley no longer qualified for
representation because he no longer met the guidelines to be
represented by the agency.
However, the plain language of
KRS 31.120 contradicts that proposition.
KRS 31.120(2)(l)
provides that the posting of a property bond by another is not
to be considered in determining if a defendant is needy, and
KRS 31.120 further provides that “[r]elease on bail, or any
other method of release provided in KRS Chapter 431, shall not
necessarily prevent [the defendant] from being a needy person.”
(Emphasis added.)
Apparently under the impression that the posting of
the property bond settled the issue, the trial court failed to
consider the factors set forth in KRS 31.120 relevant to a
determination of whether Tinsley was indigent.
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As a result, the
record is silent concerning whether Tinsley was, at the time of
trial, indigent pursuant to the factors set forth in KRS 31.120.
Perforce, we are unable to conduct a meaningful review on
Tinsley’s claim of indigency and his entitlement to a courtappointed counsel.
It is clear, however, that Tinsley claimed that he had
no funds to retain private counsel; that the trial court
erroneously determined that he was not entitled to appointed
counsel because a property bond had been posted; and the court
failed to comply with the mandates of KRS 31.120 in determining
indigency.
As such, we are of the opinion Tinsley is entitled
to a new trial.
Assuming, arguendo, that Tinsley was in fact not
indigent and could have retained private counsel, nevertheless,
reversal would still be required.
If Tinsley were not indigent,
then he, in effect, waived his right to counsel, thereby
triggering the protections of Faretta v. California, 422 U.S.
806, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975).
In Kentucky, a trial
court is under an affirmative duty to hold a Faretta hearing
when an accused attempts to make an absolute or limited waiver
of the right to counsel.
226 (Ky. 2004).
Hill v. Commonwealth, 125 S.W.3d 221,
The trial court has three Faretta duties.
First, the trial court must conduct a hearing in which the
defendant testifies as to whether the waiver is voluntary,
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Id.
knowing, and intelligent.
Id.
Second, the trial court must
warn the defendant in the hearing of the benefits relinquished
and the perils arising from the waiver of counsel.
Id.
Finally, the trial court must make a finding on the record that
the waiver is voluntary, knowing, and intelligent.
Id.
The
failure to comply with these requirements constitutes
“structural” error to which harmless error analysis is
inapplicable. Id. at 228.
The record is void of a Faretta-type
hearing and the attendant duties.
The Commonwealth directs our attention to Greely v.
Commonwealth, 825 S.W.2d 617 (Ky.App. 1992).
In that case the
defendant, an attorney, had been granted numerous continuances
before trial.
attorneys.
He had also been represented by a series of
On the second day of trial he asked for a
continuance in order to have an attorney appointed for him.
court refused.
The
A subsequent conviction was upheld with the
court holding that the defendant had ample time to obtain
counsel and that his failure to do so constituted a waiver.
The
court noted that the defendant was playing a “cat and mouse”
game in order to delay trial in the matter.
Moreover, the
record clearly demonstrates that Greely was not indigent having
been possessed of “significant assets in this state in the form
of common stock and natural gas . . . .”
that Greely is dispositive.
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Thus we do not believe
In summary, while we are aware of the dilemma faced by
trial courts upon the issues of indigency and the appointment of
counsel, we offer the following observations:
first, if a
defendant raises the issue of indigency, a hearing must be held
thereon for a determination in accordance with the requirements
set forth in KRS Chapter 31, and the court must enter findings
at the conclusion thereof.
counsel shall be appointed.
If the findings support indigency,
Second, if the findings do not
support indigency, and the defendant persists in not employing
counsel, he shall be deemed to have waived counsel, whereupon he
is entitled to the protections of Faretta.
Should the trial
court fail in the foregoing, the trial is defective.
For the foregoing reasons the matter is reversed and
remanded to the Hardin Circuit Court for additional proceedings
consistent with this opinion.
ALL CONCUR.
BRIEF FOR APPELLANT:
BRIEF FOR APPELLEE:
Donald H. Morehead
Assistant Public Advocate
Department of Public Advocacy
Frankfort, Kentucky
Gregory D. Stumbo
Attorney General of Kentucky
Ian G. Sonego
Assistant Attorney General
Frankfort, Kentucky
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