BAKER V. COM.
CRIMINAL: Appointed counsel and indigency
PUBLISHED: REVERSING AND REMANDING
JUDGES: PAISLEY (PRESIDING); THOMPSON, VANMETER CONCUR
DATE RENDERED: 6/22/2007
CA reversed and remanded Defendant’s conviction and 3.5 year sentence for criminal non-support due to TC’s failure to conduct indigency hearing. In Tinsley v. Commonwealth, 185 S.W.3d 668 (Ky.App. 2006), this Court recently summarized the standards governing the determination of indigency for the purpose of appointment of counsel. The opinion outlined the two-step process that must be followed if a defendant raises the issue of indigency. First, “a hearing must be held . . . in accordance with the requirements set forth in KRS Chapter 31, and the court must enter findings at the conclusion thereof.” TC did not hold a formal hearing, nor did it enter written findings to support its decision to vacate his public defender appointment. The decision appears to have been based on information elicited at the September 16, 2005, pretrial conference: namely, that Baker was planning to retain an attorney to handle his civil case whom he was hoping would also review his criminal case, and that he had been employed since May or June. The court made no inquiries as to the amount of Baker’s income, nor is there any indication in the record that the court considered any of the other factors listed in KRS 31.120(2). The court also ordered the execution of the bench warrant, thereby making it impossible for Baker to continue his employment without securing work release, which was not granted. Next, even assuming for the sake of argument that the findings of the trial court were adequate to support its conclusion that Baker was not indigent, the court also failed to comply with the next step of the process as outlined in Tinsley. “[I]f 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.” Tinsley at 675. “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.”