71st OREGON LEGISLATIVE ASSEMBLY--2001 Regular Session
NOTE: Matter within { + braces and plus signs + } in an
amended section is new. Matter within { - braces and minus
signs - } is existing law to be omitted. New sections are within
{ + braces and plus signs + } .
LC 1182
A-Engrossed
House Bill 2337
Ordered by the House April 12
Including House Amendments dated April 12
Ordered printed by the Speaker pursuant to House Rule 12.00A (5).
Presession filed (at the request of Joint Interim Judiciary
Committee for Judicial Department)
SUMMARY
The following summary is not prepared by the sponsors of the
measure and is not a part of the body thereof subject to
consideration by the Legislative Assembly. It is an editor's
brief statement of the essential features of the measure.
Requires that court determine { + at specified stages of
proceeding + } whether request for waiver of counsel in criminal
action is made knowingly { - , intelligently - } and
voluntarily. { + Provides factors to be considered by court in
determining whether waiver of counsel is knowing and
voluntary. + } Provides that court shall allow knowing { - ,
intelligent - } and voluntary waiver in non-capital cases and
may allow such waiver in capital cases. { + Prohibits court
from allowing defendant less than 18 years of age to waive
counsel. Permits court to allow attorney to serve as defendant's
legal advisor if court has accepted defendant's waiver of
counsel. + }
A BILL FOR AN ACT
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
inform the defendant of the risks of not being represented by
counsel. If the defendant continues to wish to waive counsel, the
court shall determine, based on findings on the record, whether
the defendant's waiver of counsel is knowing and voluntary. In
making that determination, the court may consider any material
factor, including but not limited to the defendant's age,
education, mental capacity, prior experience with the legal
system, knowledge of court procedures and knowledge of
substantive law of the proceeding. When the court determines that
the defendant has made a knowing and voluntary waiver of counsel:
(A) The court shall accept the waiver of counsel if the
defendant is not charged with a capital offense.
(B) The court may decline to accept the waiver of counsel if
the defendant is charged with a capital offense.
(d) Notwithstanding paragraph (c) of this subsection, the court
may not allow a defendant who is less than 18 years of age at the
time of the court proceeding to waive counsel.
(e) 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
inform the defendant of the risks of not being represented by
counsel on appeal or on review, as appropriate. If the defendant
continues to wish to waive counsel, the court shall determine,
based on findings on the record, whether the defendant's waiver
of counsel is knowing and voluntary. In making that
determination, the court may consider any material factor,
including but not limited to the defendant's age, education,
mental capacity, prior experience with the legal system,
knowledge of court procedures and knowledge of substantive law of
the proceeding.
(2) When the court determines that the defendant has made a
knowing and voluntary waiver of counsel:
(a) The court shall accept the waiver of counsel if the
defendant is not charged with a capital offense; or
(b) The court may decline to accept the waiver of counsel if
the defendant is charged with a capital offense.
(3) Notwithstanding subsection (2) of this section, the court
may not allow a defendant who is less than 18 years of age at the
time of the court proceeding to waive counsel.
(4) 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.
(5) If the court declines to accept a defendant's waiver of
counsel under subsection (2)(b) 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) Notwithstanding subsection (1) of this section { + : + }
{ - , - }
{ + (a) 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.
(b) + } 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.
(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;
(c) The defendant provides to the court a written and verified
financial statement; and
(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;
(c) A list of automobiles and other personal property of
significant value belonging to defendant or 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.
(c) For extradition proceedings under the provisions of the
Uniform Criminal Extradition Act.
(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.
(C) By the city, in respect to a proceeding in municipal 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
(c) A proceeding of contempt of court.
(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. + }
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