State of WV v. Wilkes
Annotate this Case
January 1995 Term
___________
No. 22599
___________
STATE OF WEST VIRGINIA EX REL. ARISTIDES ROJAS,
Petitioner,
v.
HONORABLE CHRISTOPHER C. WILKES, JUDGE
OF THE CIRCUIT COURT OF BERKELEY COUNTY, AND
PAMELA GAMES-NEELY, PROSECUTING ATTORNEY
FOR BERKELEY COUNTY,
Respondents
_______________________________________________________
Petition for a Writ of Prohibition
WRIT GRANTED AS MOULDED
_______________________________________________________
Submitted: January 10, 1995
Filed: February 23, 1995
Kevin D. Mills
Burke Street Law Center
Martinsburg, West Virginia
Attorney for the Petitioner
John M. Hedges
Byrne & Hedges
Morgantown, West Virginia
Attorney for the Respondents
JUDGE FOX delivered the Opinion of the Court.
JUSTICE BROTHERTON did not participate.
JUDGE FOX sitting by temporary assignment.
SYLLABUS BY THE COURT
1. Under W.Va. Code § 29-21-16(f) (1992), a trial judge
is permitted a continuing inquiry beyond a criminal defendant's
financial affidavit requesting publicly funded legal counsel, and
may question additional circumstances relating to the defendant's
request for indigent status. If financial assistance provided by
a third party makes it possible for an indigent criminal defendant
to have the benefit of private counsel, subjects of judicial
inquiry may include the source of the funds with which private
counsel was retained, the terms of the legal representation
agreement, and the reasonableness of the fee arrangement.
2. "In evaluating a motion under W.Va. Code, 51-11-8 for
additional expert fees, the trial judge should accord considerable
weight to the representations in the defense counsel's motion, but
should also engage in independent inquiry as to the need for the
expert if he believes that such inquiry is necessary. In ruling on
the motion, the trial judge should grant it if he determines that
the assistance of the expert is reasonably necessary to defense
counsel's development of a relevant issue in the case." Syllabus
point 2, State ex rel. Foster v. Luff, 164 W.Va. 413, 264 S.E.2d 477 (1980).
3. Financial assistance provided by a third party which
enables an indigent criminal defendant to have the benefit of
private counsel is not relevant to the defendant's right to have expert assistance provided at public expense. A criminal defendant
who qualifies as an indigent person is entitled to receive publicly
funded expert assistance deemed essential to conducting an
effective defense.
Fox, Judge:See footnote 1
The issue in this case is whether a criminal defendant
who is personally indigent is entitled to public funds for expert
assistance deemed essential to an effective defense after a third
party provides financial assistance which enables the defendant to
have the benefit of private counsel.
The petitioner, Aristides Rojas, age 23, was indicted in
May, 1994, for the felony of murder of the first degree. He is
presently incarcerated and unable to make bail.
Following his indictment, the petitioner filed a
financial affidavit alleging indigent status and requesting the
appointment of publicly funded counsel. The respondent,
Christopher Wilkes, Judge of the Circuit Court of Berkeley County,
West Virginia, granted the request and appointed a public defender
as counsel for the petitioner. On 25 August 1994, the petitioner's
family privately retained attorney Kevin D. Mills as petitioner's
counsel. The petitioner's family obtained the necessary funds from
a bank loan and donations from their church.
On 23 September 1994, the petitioner moved the trial
court for authorization of expert witness expenditure or,
alternatively, for appointment of publicly funded co-counsel.
Following a hearing on 26 September 1994, the court denied
petitioner's motion. In an order entered 30 September 1994, the
circuit court concluded, "[b]y choosing to allow the substitution
of counsel, [the defendant] has . . . in the court's opinion
divested himself of the right to have costs associated with his
representation paid for by the State . . . ." The court also
stated, "[a]lthough the defendant remains indigent, he has no right
under law to have co-counsel appointed for him since his family has
hired an attorney . . . ."
The petitioner now seeks a writ of prohibition and asks
this Court for relief from the circuit court's 30 September 1994
order.See footnote 2
In a response and supporting memorandum filed by counsel
on 23 December 1994, the respondent Judge Wilkes states, "[b]ased
upon the fact that the petitioner has chosen to accept privately
funded counsel in lieu of public defender representation, the Court
determined that the petitioner had failed to demonstrate any
reasonable basis or authority for the expenditure of public
defender funds to augment privately retained counsel." Although the respondent acknowledges that "[i]n the strictest sense, the
petitioner remains under indigent status in view of his own income
and assets," the respondent nevertheless argues, "[o]nce the
advance sum was paid by the petitioner's family members for his
defense, this fund became a relevant factor in the determination of
whether the petitioner was entitled to the expenditure of public
funds."
We disagree with the respondent's contention that the
funds with which the petitioner's family retained private counsel
are relevant to petitioner's right as an indigent person to have
necessary expert assistance provided at the State's expense. The
petitioner's family members have no obligation to finance the
petitioner's defense, and any funds they provide have no effect on
his status as personally indigent.
West Virginia Code § 29-21-16(e) (1992) sets forth the
following factors which a trial court may consider when determining
a defendant's eligibility for appointed counsel: (1) current
income; (2) liquid assets; (3) fixed debts; (4) employment
expenses; (5) age and health; (6) whether the person has attempted
to obtain private legal representation; (7) the cost of obtaining
private counsel; (8) whether bond has been posted; and (9) the
consequences if legal representation is denied.
In State ex rel. Partain v. Oakley, 159 W.Va. 805, 227 S.E.2d 314, 318 (1976), this Court explained that a defendant's
affidavit alleging indigency must contain "more than mere
conclusory language":
[T]he defendant must provide a showing, in
sufficient detail, to permit the trial judge
to consider factors, including but not limited
to income, bank accounts, real or personal
property owned, normal living expenses,
outstanding debts, number of dependents, the
seriousness of the charge and the effect of
the criminal proceeding, and thereby to permit
the trial court to make an independent
determination on the issue of the defendant's
ability to pay.
West Virginia Code § 29-21-16(f) (1992) also states,
"[a]t any stage of the proceedings a circuit court may determine a
prior finding of eligibility was incorrect or has become incorrect
as the result of the affiant's changed financial circumstances, and
may revoke any prior order providing legal representation." It
therefore follows that under W.Va. Code § 29-21-16(f) (1992), a
trial judge is permitted a continuing inquiry beyond a criminal
defendant's financial affidavit requesting publicly funded legal
counsel, and may question additional circumstances relating to the
defendant's request for indigent status. If financial assistance
provided by a third party makes it possible for an indigent
criminal defendant to have the benefit of private counsel, subjects
of judicial inquiry may include the source of the funds with which
private counsel was retained, the terms of the legal representation
agreement, and the reasonableness of the fee arrangement.
In this case, the petitioner's indigent status is not in
dispute. Public funds for expert assistance are generally provided
to an indigent upon a showing such assistance is essential to an
adequate defense. In syllabus point 2 of State ex rel. Foster v.
Luff, 164 W.Va. 418, 264 S.E.2d 477 (1980), this Court held:
In evaluating a motion under W.Va. Code,
51-11-8 for additional expert fees, the trial
judge should accord considerable weight to the
representations in the defense counsel's
motion, but should also engage in independent
inquiry as to the need for the expert if he
believes that such inquiry is necessary. In
ruling on the motion, the trial judge should
grant it if he determines that the assistance
of the expert is reasonably necessary to
defense counsel's development of a relevant
issue in the case.
In Spain v. District Court of Tulsa County, 882 P.2d 79
(Okla.Crim.App. 1994), the Court of Criminal Appeals of Oklahoma
recently addressed facts and issues similar to those raised in this
case. The defendant Spain petitioned for an alternative writ of
prohibition or mandamus, asking that the court vacate the lower
court's order which denied him a copy of a transcript of the
preliminary hearing at public expense. Spain was personally
indigent, but his parents retained two attorneys for $15,000.00 and
obligated themselves to pay additional attorney fees ranging from
$10,000.00 to $40,000.00. Although the parents hoped to raise the
money by mortgaging their house, they were uncertain about whether
they could pay the attorneys in full, and they were unwilling to
pay other expenses associated with their son's defense. The court
held:
[T]he fact that Spain's parents were willing
and able to retain counsel on his behalf has
no bearing on Spain's status as an indigent,
given his parents' unwillingness to provide
any further financial assistance. Moreover,
the District Judge indicated that Spain is
personally indigent. Once the District Judge
exercised his discretion and found that Spain
was personally indigent, Spain became legally
entitled to receive a copy of his preliminary
hearing transcript at public expense.
Id. at 81.
In Ex parte Sanders, 612 So. 2d 1199 (Ala. 1993), the
Supreme Court of Alabama held an indigent defendant for whom a
third party has retained legal counsel has a right to funds for
expert assistance when the need for such assistance and its
relevance to the defense theory is shown. After explaining that
the assets of friends and relatives who are not legally responsible
for the defendant are not included within the assets referred to
for purposes of determining indigency, the Supreme Court of Alabama
stated:
If the assets of friends and relatives
who are not legally responsible for the
defendant are not included in determining a
defendant's indigency, then the fact that a
friend or relative pays for an indigent
defendant's counsel should not be considered
in determining whether the defendant is
entitled to funds for expert assistance. The
simple fact that the defendant's family, with
no legal duty to do so, retained counsel for
the defendant, does not bar the defendant from
obtaining funds for expert assistance when the
defendant shows that the expert assistance is
necessary.
Id. at 1201.
In the case now before us, the trial judge was obviously
concerned about the fact the private attorney accepted an
unspecified fee as a retainer and then sought public funds to pay
for additional defense expenses. However, once a defendant is
qualified as an indigent person, and so long as he truly remains
indigent, he is entitled to public funds for expenses associated
with his defense.
We conclude that financial assistance provided by a third
party which enables an indigent criminal defendant to have the
benefit of private counsel is not relevant to the defendant's right
to have expert assistance provided at public expense. A criminal
defendant who qualifies as an indigent person is entitled to
receive publicly funded expert assistance deemed essential to
conducting an effective defense.
For the reasons set forth above, we grant the
petitioner's request for a writ of prohibition. The respondent
Judge Wilkes is directed to conduct a hearing as to the
petitioner's need for expert assistance at trial.See footnote 3 Upon a finding
of necessity, expert assistance shall be provided pursuant to W.Va.
Code § 29-21-1, et seq.
Writ granted as moulded.
Footnote: 1 Pursuant to an administrative order entered by this Court on 18 November 1994, the Honorable Fred L. Fox, II, Judge of the Sixteenth Judicial Circuit, was assigned to sit as a member of the West Virginia Supreme Court of Appeals commencing 1 January 1995 and continuing through 31 March 1995, because of the physical incapacity of Justice W. T. Brotherton, Jr. On 14 February 1995 a subsequent administrative order extended this assignment until further order of said Court. Footnote: 2 In addition to Judge Wilkes, the petitioner names Pamela Games-Neely, Prosecuting Attorney for Berkeley County, as a respondent.Footnote: 3 See State ex rel. Foster v. Luff, supra.
Some case metadata and case summaries were written with the help of AI, which can produce inaccuracies. You should read the full case before relying on it for legal research purposes.
This site is protected by reCAPTCHA and the Google Privacy Policy and Terms of Service apply.