S.L. 1969-1013

NORTH CAROLINA GENERAL ASSEMBLY

1969 SESSION

CHAPTER 1013

HOUSE BILL 164

AN ACT TO PROVIDE LEGAL REPRESENTATION FOR INDIGENT PERSONS, TO STRENGTHEN THE ASSIGNED COUNSEL SYSTEM, TO ESTABLISH A PUBLIC DEFENDER IN CERTAIN JUDICIAL DISTRICTS, AND FOR OTHER RELATED PURPOSES.

The General Assembly of North Carolina do enact:

Section 1. G.S. Chapter 7A, Judicial Department, is amended by adding at the end thereof the following new subchapter:

"Subchapter IX. Representation of Indigent Persons.

Article 36. Entitlement of Indigent Persons Generally.

Sec. 7A-500. Indigency; definition; entitlement; determination.

(a) An indigent person is a person who is financially unable to secure legal representation and to provide all other necessary expenses of representation in an action or proceeding enumerated in this subchapter.

(b) Whenever a person, under the standards and procedures set out in this subchapter, is determined to be an indigent person entitled to counsel, it is the responsibility of the State to provide him with counsel and the other necessary expenses of representation. The professional relationship of counsel so provided to the indigent person he represents is the same as if counsel had been privately retained by the indigent person.

(c) The question of indigency may be determined or redetermined by the court at any stage of the action or proceeding at which an indigent is entitled to representation.

Sec. 7A-501. Scope of entitlement. (a) An indigent person is entitled to services of counsel in the following actions and proceedings:

(1) any felony case, and any misdemeanor case for which the authorized punishment exceeds six months imprisonment or a five hundred dollars ($500.00) fine;

(2) a hearing on a petition for a writ of habeas corpus under Chapter 17 of the General Statutes;

(3) a post-conviction proceeding under Chapter 15 of the General Statutes;

(4) a hearing for revocation of probation, if counsel was provided at trial or if confinement of more than six months is possible as a result of the hearing;

(5) a hearing in which extradition to another state is sought;

(6) a proceeding for judicial hospitalization under Chapter 122, Article 11 (Mentally Ill Criminals), of the General Statutes;

(7) a civil arrest and bail proceeding under Chapter 1, Article 34, of the General Statutes; and

(8) in the case of a juvenile, a hearing as a result of which commitment to an institution or transfer to the Superior Court for trial on a felony charge is possible.

(b) In each of the actions and proceedings enumerated in subsection (a) of this Section, entitlement to the services of counsel begins as soon as feasible after the indigent is taken into custody or service is made upon him of the charge, petition, notice or other initiating process. Entitlement continues through any critical stage of the action or proceeding, including, if applicable:

(1) an in-custody interrogation;

(2) a pre-trial identification procedure at which the presence of the indigent is required;

(3) a hearing for the reduction of bail, or to fix bail if bail has been earlier denied;

(4) a preliminary hearing;

(5) trial and sentencing; and

(6) direct review of any judgment or decree, including review by the United States Supreme Court of final judgments or decrees rendered by the highest court of North Carolina in which decision may be had.

Sec. 7A-502. Source of counsel; fees; appellate records.

(a) Counsel for an indigent person shall be assigned by the court. In those districts which have a public defender, however, the public defender may tentatively assign himself or an assistant public defender to represent an indigent person, subject to subsequent approval by the court.

(b) Fees of assigned counsel and salaries and other operating expenses of the offices of the public defenders shall be borne by the State.

(c) In a county in which the district court has not yet been established, when an appeal is taken by an indigent person, the county shall make available a trial transcript and any other records required for adequate appellate review.

Sec. 7A-503. Duty of custodian of a possibly indigent person; determination of indigency.

(a) In districts which have a public defender, the authority having custody of a person who is without counsel for more than 48 hours after being taken into custody shall so inform the public defender. The public defender shall make a preliminary determination as to the person's entitlement to his services, and proceed accordingly. The court shall make the final determination.

(b) In districts which do not have a public defender, the authority having custody of a person who is without counsel for more than 48 hours after being taken into custody shall so inform the clerk of superior court. The clerk shall make a preliminary determination as to the person's entitlement to counsel and so inform any district or superior court judge holding court in the county. The judge so informed may assign counsel. The court shall make the final determination.

(c) In any district, if a defendant, upon being taken into custody, states that he is indigent and desires counsel, the authority having custody shall immediately inform the defender or the clerk of superior court, as the case may be, who shall take action as provided in this Section.

(d) The duties imposed by this Section upon authorities having custody of persons who may be indigent are in addition to the duties imposed upon arresting officers under G.S. 15-47.

Sec. 7A-504. Supporting services. The court, in its discretion, may approve a fee for the service of an expert witness who testifies for an indigent person, and shall approve reimbursement for the necessary expenses of counsel. Fees and expenses accrued under this Section shall be paid by the State.

Sec. 7A-505. Partial indigency; liens; acquittals.

(a) If, in the opinion of the court, an indigent person is financially able to pay a portion, but not all, of the value of the legal services rendered for him by assigned counsel or by the public defender, and other necessary expenses of representation, he shall order the partially indigent person to pay such portion to the clerk of superior court for transmission to the State treasury.

(b) In all cases the court shall fix the money value of services rendered by assigned counsel or the public defender, and such sum, to the extent not reimbursed to the State by the indigent person as provided in subsection (a), plus any sums allowed by the court for other necessary expenses of representing the indigent person, shall be entered as a judgment in the office of the clerk of superior court, and shall constitute a lien as prescribed by the general law of the State applicable to judgments. Funds collected by reason of any such judgment shall be deposited in the State Treasury.

(c) If the indigent person is not finally convicted, the foregoing provisions with respect to partial payments and liens shall not be applicable.

Sec. 7A-506. False statements; penalty. A false material statement made by a person under oath or affirmation in regard to the question of his indigency constitutes perjury, and upon conviction thereof, the defendant may be punished as provided in G.S. 14-209.

Sec. 7A-507. Waiver of counsel; pleas of guilty.

(a) An indigent person who has been informed of his rights under this subchapter may, in writing, waive any right granted by this subchapter, if the court finds of record that at the time of the waiver the indigent person acted with full awareness of his rights and of the consequences of a waiver. In making such a finding, the court shall consider, among other things, such matters as the person's age, education, familiarity with the English language, mental condition, and the complexity of the crime charged. A waiver shall not be allowed in a capital case.

(b) If an indigent person waives counsel as provided in subsection (a), and pleads guilty to any offense, the court shall inform him of the nature of the offense and the possible consequences of his plea, and as a condition of accepting the plea of guilty the court shall examine the person and shall ascertain that the plea was freely, understandably and voluntarily made, without undue influence, compulsion or duress, and without promise of leniency. An indigent person without counsel shall not be allowed to plead guilty to a capital offense.

Sec. 7A-508. Counsel fees. In districts which do not have a public defender, the court shall fix the fee to which an attorney who represents an indigent person is entitled. In doing so, the court shall allow a fee based on the factors normally considered in fixing attorneys' fees, such as the nature of the case, the time, effort and responsibility involved, and the fee usually charged in similar cases. Fees shall be fixed by the district court judge for actions or proceedings finally determined in the district court and by the superior court judge for actions or proceedings originating in, heard on appeal in, or appealed from the superior court. Even if the trial, appeal, hearing or other proceeding is never held, preparation therefor is nevertheless compensable.

Sec. 7A-509. Implementing regulations by State Bar Council. In districts which do not have a public defender, the North Carolina State Bar Council shall make rules and regulations consistent with this Article relating to the manner and meth- od of assigning counsel, the procedure for the determination of indigency, the waiver of counsel, the adoption and approval of plans by any district bar regarding the method of assignment of counsel among the licensed attorneys of the district, and such other matters as shall provide for the protection of the constitutional rights of all indigent persons and the reasonable allocation of responsibility for the representation of indigent persons among the licensed attorneys of this State. Such rules and regulations shall not become effective until certified to and approved by the Supreme Court of North Carolina.

ARTICLE 37. The Public Defender.

Sec. 7A-520. Public Defender; defender districts; qualifications, compensation. The office of public defender is established, effective January 1, 1970, in the following judicial districts: the twelfth and the eighteenth.

The public defender shall be an attorney licensed to practice law in North Carolina, and shall devote his full time to the duties of his office. The compensation of the defender is the same as that of a full-time district solicitor, and is paid by the State.

Sec. 7A-521. Selection of defender; term; removal. The Public defender shall be appointed by the Governor from a list of not less than two names and not more than three names nominated by written ballot of the attorneys resident in the district who are licensed to practice law in North Carolina. The balloting shall be conducted pursuant to regulations promulgated by the Administrative Office of the Courts. The term of office of the public defender is four years beginning January 1, 1970, and each fourth year thereafter.

A vacancy in the office of public defender is filled, in the same manner as the original appointment, for the unexpired term.

A public defender or assistant public defender may be suspended or removed from office, and reinstated, for the same causes and under the same procedures as are applicable to removal of a district court judge.

Sec. 7A-522. Assistant defenders; assigned counsel. Each public defender is entitled to at least one full-time assistant public defender, and to such additional assistants, full-time or part-time, as may be authorized by the Administrative Office of the Courts. Assistants are appointed by the public defender and serve at his pleasure. Compensation of assistants shall be as provided in the biennial budget appropriations act. Assistants shall perform such duties as may be assigned by the public defender.

A member of the district bar who consents to such service may be assigned by the public defender to represent an indigent person, and when so assigned is entitled to the services of the defender's office to the same extent as a full-time public defender. In assigning assistant defenders and members of the bar generally the defender shall consider the nature of the case and the skill of counsel, to the end that all indigent persons are adequately represented.

If a conflict of interests prohibits the public defender from representing an indigent person, or in unusual circumstances when, in the opinion of the court the proper administration of justice requires it, the court may assign any member of the district bar to represent an indigent person, and when so assigned, counsel is entitled to the services of the defender's office to the same extent as counsel assigned by the public defender.

Members of the bar assigned by the defender or by the court are compensated in the same manner as assigned counsel are compensated in districts which do not have a public defender.

Sec. 7A-523. Investigative services. Each public defender is entitled to the services of one investigator, to be appointed by the defender to serve at his pleasure. The Administrative Officer of the Courts shall fix the compensation of each investigator, and may authorize additional investigators, full-time or part-time, upon a showing of need.

Sec. 7A-524. Support for office of defender. The Administrative Officer of the Courts shall procure office equipment and supplies for the public defender, and provide secretarial and library support from State funds appropriated to his office for this purpose.

Sec. 7A-525. Reports. The public defender shall keep appropriate records and make periodic reports, as requested, to the Administrative Office of the Courts on matters related to the operation of his office."

Sec. 2. G.S. 7A-300 is hereby amended as follows:

(a) By rewriting subsection (a) (2) as follows: "(2) Salaries and expenses of superior court judges, solicitors, assistant solicitors, public defenders, and assistant public defenders, and fees and expenses of counsel assigned to represent indigents under the provisions of Subchapter IX of this Chapter";

(b) By renumbering subsection (a) (8) as (a) (9) and inserting the following new subsection after subsection (a) (7): "(8) Briefs for counsel and transcripts and other records for adequate appellate review when an appeal is taken by an indigent person"; and

Sec. 3. G.S. 7A-304(a)(2) is hereby amended by adding the words "public defenders," after the word "prosecutors," and before the word "magistrates," in line ten.

Sec. 4. G.S. 7A-344 and G.S. 7A-345 are hereby renumbered G.S. 7A-345 and G.S. 7A-346, respectively, and the following new section is inserted after G.S. 7A-343:

"G.S. 7A-344. Special duties of Director concerning representation of indigent persons. In addition to the duties prescribed in G.S. 7A-343, the Director shall also:

(1) supervise and coordinate the operation of the laws and regulations concerning the assignment of legal counsel for indigent persons under Subchapter IX of this Chapter to the end that all indigent persons are adequately represented;

(2) advise and cooperate with the offices of the public defenders as needed to achieve maximum effectiveness in the discharge of the defender's responsibilities;

(3) collect data on the operation of the assigned counsel and the public defender systems, and make such recommendations to the General Assembly for improvement in the operation of these systems as appear to him to be appropriate; and

(4) accept and utilize federal or private funds, as available, to improve defense services for the indigent."

Sec. 5. G.S. 7A-345 as herein renumbered to 7A-346 is amended by adding the words "public defenders," after the word "prosecutors," and before the word "magistrates," in line one.

Sec. 6. G.S. 15-5.2 is hereby amended as follows:

(a) By striking out the words "Session Laws 1963, Chapter 1080" in lines four and five and again in line eight, and inserting in lieu thereof in both places the words "Chapter 7A, subchapter IX"; and

(b) By adding a new paragraph, to read as follows: "This Section shall apply only in those counties in which there is not yet established a district court. This Section is repealed effective January 1, 1971."

Sec. 7. G.S. 15-181 is hereby rewritten to read as follows:

"G.S. 15-181. Defendant may appeal without security for costs. Whenever an indigent entitled to counsel under the provisions of Chapter 7A, subchapter IX, has been convicted in the Superior Court, he shall have the right to appeal without giving security for costs."

Sec. 8. G.S. 15-200.1 is hereby amended by striking out the sentence "The court, at the request of the defendant, shall grant a reasonable time for the defendant to prepare his defense." in lines seven and eight and inserting in lieu thereof the following: "The probationer shall be entitled to representation by counsel, including court-appointed counsel if he is indigent and had counsel at the trial or if more than six month's confinement is possible as a result of revocation of probation. He is also entitled to a reasonable time to prepare his defense."

Sec. 9. G.S. 15-219 is hereby amended by striking out everything after the first sentence and inserting in lieu thereof: "If the petitioner is an indigent person, the provisions of Chapter 7A, subchapter IX are applicable."

Sec. 10. G.S. 15-220 is hereby amended as follows:

(a) By inserting after the word "county" and before the word "to" in line four of the second paragraph the following words: "in counties which do not yet have district court."

(b) By adding at the end of paragraph two the following new sentence: "In counties in which a district court is established the State is liable for payment of the costs assessed in this paragraph."

Sec. 11. G.S. 15-222 is hereby amended by striking out all of the first paragraph after the first sentence and all of the second paragraph.

Sec. 12. G.S. 15-4.1, G.S. 15-5, G.S. 15-5.1, G.S. 15-5.3, G.S. 15-5.4 and all other laws and parts of laws in conflict with this Act are hereby repealed.

Sec. 13. Partial invalidity. If any provision of this Act or the application thereof to any person or circumstance is held invalid, such invalidity shall not affect other provisions or applications of this Act which can be given effect without the invalid provision or application, and to this end the provisions of this Act are declared to be severable.

Sec. 14. This Act shall become effective July 1, 1969.

In the General Assembly read three times and ratified, this the 23rd day of June, 1969.