Chapter 472 Oregon Laws 2001

AN ACT

HB 2337

Relating to representation by attorneys in criminal actions; creating new provisions; and amending ORS 135.045, 135.050, 135.055, 135.075, 138.500, 151.210 and 151.250.

Be It Enacted by the People of the State of Oregon:

SECTION 1. ORS 135.045 is amended to read:

135.045. [If upon arraignment of a person accused of a crime against the laws of this state, the person being arraigned appears without counsel, the court having jurisdiction of the case, in accordance with ORS 135.050, shall appoint suitable counsel to represent the person unless the person waives counsel and the court approves the waiver.] (1)(a) If the defendant in a criminal action appears without counsel at arraignment or thereafter, the court shall determine whether the defendant wishes to be represented by counsel.

(b) If the defendant does wish to be represented by counsel, the court, in accordance with ORS 135.050, shall appoint counsel to represent the defendant.

(c) If the defendant wishes to waive counsel, the court shall determine whether the defendant has made a knowing and voluntary waiver of counsel. The court shall accept the waiver of counsel if the defendant is not charged with a capital offense. The court may decline to accept the waiver of counsel if the defendant is charged with a capital offense.

(d) If the court accepts a defendant’s waiver of counsel, the court may allow an attorney to serve as the defendant’s legal advisor and may, in accordance with ORS 135.050, appoint an attorney as the defendant’s legal advisor.

(2) Appointment of counsel, including a legal advisor, under this section:

(a) Is subject to ORS 135.050, 135.055 and 151.430 to 151.495; and [. Appointment of counsel under this section]

(b) Shall be made in compliance with the terms of applicable contracts executed by the State Court Administrator under ORS 151.460.

SECTION 2. (1) If the defendant wishes to waive counsel in the appeal of a criminal action to the Court of Appeals or on review of a criminal action by the Supreme Court, the court shall determine whether the defendant has made a knowing and voluntary waiver of counsel. The court shall accept the waiver of counsel if the defendant is not charged with a capital offense. The court may decline to accept the waiver of counsel if the defendant is charged with a capital offense.

(2) If the court accepts a defendant’s waiver of counsel, the court may allow an attorney to serve as the defendant’s legal advisor and, if the defendant is indigent, may appoint an attorney as the defendant’s legal advisor.

(3) If the court declines to accept a defendant’s waiver of counsel under subsection (1) of this section, the court shall give the defendant a reasonable opportunity, as prescribed by order or rule of the court, to file a brief on the defendant’s own behalf.

SECTION 3. ORS 138.500 is amended to read:

138.500. (1) If a defendant in a criminal action or a petitioner in a proceeding pursuant to ORS 138.510 to 138.680 wishes to appeal from an appealable adverse final order or judgment of a circuit court and if the person is without funds to employ suitable counsel possessing skills and experience commensurate with the nature and complexity of the case for the appeal, the person may request the circuit court from which the appeal is or would be taken to appoint counsel to represent the person on appeal. The following apply to a request under this subsection:

(a) The request shall be in writing and shall be made within the time during which an appeal may be taken or, if the notice of appeal has been filed, at any time thereafter. The request shall include a brief statement of the assets, liabilities and income in the previous year of the person unless the court already determined the person to be indigent for purposes of the specific case, in which instance, the written request need only so indicate. However, if a request relies on a court’s previous determination that the person is indigent, the court, in its discretion, may require the person to submit a new statement of assets, liabilities and income.

(b) If, based upon a request under paragraph (a) of this subsection, the court finds that petitioner or defendant previously received the services of appointed counsel or currently is without funds to employ suitable counsel for an appeal, the court shall appoint counsel to represent petitioner or defendant on the appeal, subject to applicable contracts entered into by the State Court Administrator under ORS 151.460.

(c) Under paragraph (b) of this subsection, the court, in its discretion, may appoint counsel who represented petitioner or defendant in the court in the case, or if the Public Defender is able to serve, it may appoint, in a criminal action, the Public Defender as counsel on appeal.

(2)(a) Notwithstanding subsection (1) of this section, when a defendant has been sentenced to death, the request for appointed counsel shall be made to the Supreme Court. The Supreme Court shall appoint suitable counsel to represent the defendant on the appeal.

(b) After the notice of appeal has been filed, the Court of Appeals has concurrent authority to appoint or substitute counsel or appoint or substitute a legal advisor for the defendant under section 2 of this 2001 Act.

(c) The Supreme Court has concurrent authority to appoint or substitute counsel or appoint or substitute a legal advisor for the defendant under section 2 of this 2001 Act in connection with review of a Court of Appeals decision under ORS 2.520.

(3) Whenever a defendant in a criminal action or a petitioner in a proceeding pursuant to ORS 138.510 to 138.680 has filed a notice of appeal from an appealable adverse final order or judgment of a circuit court and the person is without funds to pay for a transcript, or portion thereof, necessary to present adequately the case upon appeal, the person may request the circuit court to order the transcript, or portion thereof, furnished to the person. The following apply to a request under this subsection:

(a) The request shall be in writing and, shall include a brief statement of the assets, liabilities and income in the previous year of the person unless the court already determined the person to be indigent for purposes of the specific case, in which instance, the written request need only so indicate. However, if the request relies on the court’s previous determination that the person is indigent, the court, in its discretion, may require the person to submit a new statement of assets, liabilities and income.

(b) If, based upon a request under paragraph (a) of this subsection, the court finds that the person is unable to pay for the transcript, the court shall order furnished to the person that portion of the transcript as may be material to the decision on appeal, if the court finds that the transcript or portion thereof is necessary.

(c) The cost of the transcript under paragraph (b) of this subsection shall be in the amount prescribed in ORS 21.470 and paid for as provided in subsection (4) of this section.

(4) After oral argument on the appeal or, if there is no oral argument, after submission of the appeal to the court for decision, the Court of Appeals shall certify the cost of briefs and any other expenses of appellant, except transcripts, necessary to appellate review and shall determine and certify a reasonable amount of compensation for counsel appointed under this section. The circuit court shall certify the cost of the transcript furnished pursuant to subsection (3) of this section, except that when a defendant has been sentenced to death, the Supreme Court shall certify the cost of the transcript. Compensation payable to appointed counsel shall not be less than the applicable minimum compensation set forth in the schedule established under ORS 151.430 (5). A statement of the costs and expenses and a request to certify compensation of counsel shall be filed after the date of oral argument, or if there is no oral argument, after the date of submission of the appeal to the court for decision, but not later than the 21st day after the date of the decision of the appeal by the court or such further time as may be allowed by the court. Except as the court may otherwise provide by rule, only one statement and request for certification may be filed. On any review by the Supreme Court of the judgment of the Court of Appeals a person for whom counsel has been appointed shall by similar procedure recover the cost of briefs, any other expense of the review and compensation for counsel.

(5) Costs, expenses and compensation certified by the Supreme Court or by the Court of Appeals under subsection (4) of this section shall be paid by the state from funds for that purpose. The Supreme Court or Court of Appeals shall certify to the administrative authority responsible for paying costs, expenses and compensation under this section that the amount of payment is reasonable and properly payable out of public funds.

(6) A court certifying costs, expenses and compensation for payment by the State Court Administrator shall supply any information requested by the State Court Administrator for the purpose of audits, statistical analysis or other activities relating to the proper disbursement of state funds or the payment of appointed counsel.

(7) The provisions of this section shall apply in favor of the defendant in a criminal action or the petitioner in a proceeding pursuant to ORS 138.510 to 138.680 when the person is respondent in an appeal taken by the state in a criminal action or by the defendant in a proceeding pursuant to ORS 138.510 to 138.680.

(8) If appointed counsel on appeal is the Public Defender established by ORS 151.280 or counsel who is under contract to provide services for the appeal pursuant to ORS 151.460, the appellate court shall not allow compensation for that appointed counsel. In all other cases, counsel shall be compensated as provided in this section.

(9) The Chief Justice of the Supreme Court may authorize one or more employees of the Judicial Department to make the certification required under subsection (4) of this section. The authorization may apply to some or all appeals before the Court of Appeals and Supreme Court. The authorization must be in writing and must specify the types of cases to which the authorization applies. A certification made by an employee of the Judicial Department pursuant to an authorization under this subsection must be based on the cost guidelines and standards established pursuant to ORS 151.430 (5) and (6). Upon motion of the attorney seeking compensation, or upon the court’s own motion, the court may increase or decrease any amount certified by an employee of the Judicial Department pursuant to an authorization made under the provisions of this subsection.

(10) As used in subsections (4) and (8) of this section, “counsel” includes a legal advisor appointed under section 2 of this 2001 Act.

SECTION 4. ORS 135.050 is amended to read:

135.050. (1) Suitable counsel for a defendant shall be appointed by a court if:

(a) The defendant is before a court on a matter described in subsection (4) of this section;

(b) The defendant requests aid of counsel;

(d) It appears to the court that the defendant is financially unable to retain adequate representation without substantial hardship in providing basic economic necessities to the defendant or the defendant’s dependent family.

(2) Appointed counsel shall not be denied to any defendant merely because the defendant’s friends or relatives have resources adequate to retain counsel or because the defendant has deposited or is capable of depositing security for release. However, appointed counsel may be denied to a defendant if the defendant’s spouse has adequate resources which the court determines should be made available to retain counsel.

(3) The defendant’s financial statement under subsection (1) of this section shall include, but not be limited to:

(a) A list of bank accounts in the name of defendant or defendant’s spouse, and the balance in each;

(b) A list of defendant’s interests in real property and those of defendant’s spouse;

(d) A list of debts in the name of defendant or defendant’s spouse, and the total of each; and

(e) A record of earnings and other sources of income in the name of defendant or defendant’s spouse, and the total of each.

(4) Counsel must be appointed for a defendant who meets the requirements of subsection (1) of this section and who is before a court on any of the following matters:

(a) Charged with a crime.

(b) For a hearing to determine whether an enhanced sentence should be imposed when such proceedings may result in the imposition of a felony sentence.

(d) For any proceeding concerning an order of probation, including but not limited to the revoking or amending thereof.

(5) Unless otherwise ordered by the court, the appointment of counsel under this section shall continue during all criminal proceedings resulting from the defendant’s arrest through acquittal or the imposition of punishment. The court having jurisdiction of the case may substitute one appointed counsel for another at any stage of the proceedings when the interests of justice require such substitution.

(6) If, at any time after the appointment of counsel, the court having jurisdiction of the case finds that the defendant is financially able to obtain counsel, the court may terminate the appointment of counsel. If, at any time during criminal proceedings, the court having jurisdiction of the case finds that the defendant is financially unable to pay counsel whom the defendant has retained, the court may appoint counsel as provided in this section.

(7) The court may order the defendant to pay to the State Court Indigent Defense Account in the General Fund in full or in part the administrative costs of determining the eligibility of the defendant for appointed counsel and the costs of the legal and other services that are related to the provision of appointed counsel under ORS 151.487, 151.505 or 161.665.

(8) In addition to any criminal prosecution, a civil proceeding may be initiated by any public body which has expended moneys for the defendant’s legal assistance within two years of judgment if the defendant was not qualified in accordance with subsection (1) of this section for legal assistance.

(9) The civil proceeding shall be subject to the exemptions from execution as provided for by law.

(10) As used in this section unless the context requires otherwise, “counsel” includes a legal advisor appointed under ORS 135.045.

SECTION 5. ORS 135.055 is amended to read:

135.055. (1) Counsel appointed pursuant to ORS 135.045 or 135.050, if other than counsel provided pursuant to ORS 151.010 or 151.460, shall, upon certification by the court, be paid fair compensation for representation in the case:

(a) By the county, subject to the approval of the governing body of the county, in a proceeding in a county or justice court.

(b) By the State Court Administrator from funds available for the purpose, in a proceeding in a circuit court.

(2) Except for counsel appointed pursuant to contracts or counsel employed by the Public Defender, compensation payable to appointed counsel under subsection (1) of this section:

(a) In a proceeding in a county or justice court shall not be less than $30 per hour.

(b) In a proceeding in a circuit court shall be subject to the applicable compensation established under ORS 151.430 (5).

(3)(a) A person determined to be eligible for appointed counsel is entitled to necessary and reasonable expenses for investigation, preparation and presentation of the case. The person or the counsel for the person may upon written request, which shall not be disclosed to the district attorney prior to conclusion of the case, secure approval and preauthorization of payment of such expenses as are necessary and proper in the investigation, preparation and presentation of the case, including but not limited to travel, telephone calls, photocopying or other reproduction of documents, necessary costs associated with obtaining the attendance of witnesses for the defense, expert witness fees and fees for interpreters and assistive communication devices necessary for the purpose of communication between counsel and a client or witness in the case.

(b) In a county or justice court, the request shall be in the form of a motion to the court. The motion must be accompanied by a supporting affidavit which sets out in detail the purpose of the requested expenditure, the name of the service provider or other recipient of the funds, the dollar amount of the requested expenditure which may not be exceeded without additional authorization and the date or dates during which the service will be rendered or events will occur for which the expenditure is requested.

(c) In a circuit court, the request shall be in the form and contain the information that is required by policies of the State Court Administrator.

(d) Entitlement under this subsection to payment for expenses is subject to policies and procedures established by the State Court Administrator, including, but not limited to, cost guidelines and standards established under ORS 151.430. Entitlement to payment of extraordinary expenses is dependent upon obtaining preauthorization from the court, if the case is in county or justice court, or from the State Court Administrator, if the case is in circuit court, except as otherwise provided in the policies and procedures established by the State Court Administrator. The presiding judge or trial judge has ultimate authority for approval of expenses under this paragraph. Approved and authorized expenses shall be paid:

(A) By the county, in respect to a proceeding in a county or justice court.

(B) By the State Court Administrator from funds available for the purpose, in respect to a proceeding in a circuit court.

(4) Upon completion of all services by the counsel of a person determined to be eligible for appointed counsel, the counsel shall submit to the court a statement of all reasonable fees and expenses of investigation, preparation, presentation and, if counsel was appointed by the court, representation paid or incurred, supported by appropriate receipts or vouchers and certified by the counsel to be true and accurate. The counsel, at that time, may request payment or reimbursement for any such expenses for which payment has not yet been approved and authorized.

(5) The total fees and expenses payable under this section shall be subject to the review of the presiding judge for the judicial district. The presiding judge shall certify that such amount is fair reimbursement for fees and expenses for representation in the case as provided in subsection (6) of this section. Upon certification and any verification as provided under subsection (6) of this section, the amount of the fees and expenses approved by the court and not already paid shall be paid:

(a) By the county, in respect to a proceeding in a county or justice court.

(b) By the State Court Administrator from funds available for the purpose, in respect to a proceeding in a circuit court.

(6)(a) The presiding judge shall certify to the administrative authority responsible for paying fees and expenses under this section that the amount for payment is reasonable and that the amount is properly payable out of public funds.

(b) With any certification by the court of fees or expenses that the State Court Administrator is to pay for counsel or other costs of indigent representation under ORS 33.015 to 33.155, 135.045, 135.055, 135.705, 144.317, 144.343, 151.430, 151.450, 151.460, 151.505, 161.346, 161.365, 161.665, 163.105, 419B.195, 419B.201, 419B.205, 419B.518, 419C.200, 419C.206, 426.255 and 426.307, the court shall include any information identified and requested by the State Court Administrator as needed for audit, statistical or any other purpose pertinent to insure the proper disbursement of state funds or pertinent to the provision of appointed counsel compensated at state expense.

(c) The presiding judge may authorize the [clerk of the] trial court administrator to make the certification required under this section in some or all cases where the amount for payment meets the policies and procedures established by the State Court Administrator under ORS 151.430 (5) and (6). The authorization must be in writing and must specify the types of cases to which the authorization applies.

(7) As used in this section unless the context requires otherwise, “counsel” includes a legal advisor appointed under ORS 135.045.

SECTION 6. ORS 135.075 is amended to read:

135.075. The magistrate shall allow the defendant a reasonable time to obtain counsel and shall adjourn the proceeding for that purpose. A defendant who is committed pending examination shall be given a reasonable opportunity to obtain counsel, including but not limited to a reasonable use of the telephone. As used in this section, “counsel” includes a legal advisor appointed under ORS 135.045.

SECTION 7. ORS 151.210 is amended to read:

151.210. As used in ORS 151.220 to 151.280, unless the context requires otherwise:

(1) “Committee” means the Public Defender Committee appointed under ORS 151.270.

(2) “Defender” means the Public Defender appointed under ORS 151.280.

(3) “Legal advisor” means an attorney appointed under ORS 135.045 (1)(e).

SECTION 8. ORS 151.250 is amended to read:

151.250. (1) In accordance with subsections (2) to (4) of this section and the determinations of the Public Defender Committee under ORS 151.280 (2) or (7), the Public Defender may act as attorney or legal advisor at any stage of a proceeding before any court, including the Supreme Court, for an individual who is committed to the legal and physical custody of the Department of Corrections pursuant to ORS 137.124, and the proceeding is other than:

(a) A habeas corpus proceeding;

(b) A proceeding for which counsel is appointed under ORS 135.045, 135.050, 419B.195, 419B.205, 419C.200, 426.100; or

(2) The defender may act only at the request of the individual described in subsection (1) of this section, or, if no such request is made, at the request of the court or magistrate.

(3) The individual on whose behalf the defender is requested to act shall submit to the defender, in the form prescribed by the committee, an affidavit of the financial circumstances of the individual unless the trial court in the case already determined the individual to be indigent for purposes of the specific case or the individual appeared in the case through court appointed counsel. If so, the request or individual need only so indicate and provide the defender information necessary to substantiate. However, if the request relies on the trial court’s previous determination that the individual is indigent, the trial court, in its discretion, may require the individual to submit a new statement of assets, liabilities and income. When the trial court so requires, the individual shall submit the affidavit in the form required by this subsection.

(4) At the request of the defender or an individual who seeks the defender’s aid, the court or magistrate before whom a proceeding is pending or to whom an application for relief has been made, shall finally determine whether the individual is eligible under this section for the defender’s aid.

SECTION 9. Section 10 of this 2001 Act is added to and made a part of ORS 151.430 to 151.495.

SECTION 10. As used in ORS 151.430 to 151.495 unless the context requires otherwise, “counsel” includes a legal advisor appointed under ORS 135.045.

Approved by the Governor June 19, 2001

Filed in the office of Secretary of State June 19, 2001

Effective date January 1, 2002

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