State in Interest of WBJ

966 P.2d 295, 353 Utah Adv. Rep. 11, 1998 Utah App. LEXIS 86, 1998 WL 691399
CourtCourt of Appeals of Utah
DecidedOctober 1, 1998
Docket961773-CA
StatusPublished
Cited by7 cases

This text of 966 P.2d 295 (State in Interest of WBJ) is published on Counsel Stack Legal Research, covering Court of Appeals of Utah primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State in Interest of WBJ, 966 P.2d 295, 353 Utah Adv. Rep. 11, 1998 Utah App. LEXIS 86, 1998 WL 691399 (Utah Ct. App. 1998).

Opinions

OPINION

BENCH, Judge:

W.B.J., a minor, appeals from a Fourth District Juvenile Court judgment finding him guilty of possession of marijuana and possession of drug paraphernalia. W.B.J. argues [296]*296that he is entitled to a new trial because the court erred in failing to appoint counsel to represent him at trial. We affirm.

BACKGROUND

In July 1996, a petition was filed in Third District Juvenile Court alleging that W.B.J. had committed theft by deception and vehicle burglary. A second petition, filed in August 1996, alleged that W.B.J. had unlawfully possessed or consumed alcohol, unlawfully possessed marijuana, and unlawfully possessed drug paraphernalia. The court consolidated the two petitions.

At the arraignment in the third district, the court advised W.B.J. of his right to counsel. W.B.J. requested court-appointed counsel before proceeding further. Because W.B.J. is a minor living with his parents, his father completed a form disclosing the family’s income so the court could evaluate the claim of indigence. After reviewing the form, the court appointed counsel for the pretrial hearing but required an additional order of the court for any further appointment. At the pretrial hearing, W.B.J. admitted the vehicle burglary allegation and the court dismissed the theft by deception allegation. Because the other three allegations related to events that occurred in Utah County, the court transferred the case to the Fourth District Juvenile Court.

At a pretrial hearing in the fourth district, W.B.J.⅛ mother completed a form disclosing the family’s financial situation. After reviewing the form, the court found that W.B.J. did not qualify for court-appointed counsel. The case then proceeded to trial, with W.B.J. representing himself. The court found W.B.J. guilty of possession of marijuana and possession of drag paraphernalia.1 The court then transferred the case back to the Third District Juvenile Court for disposition. The disposition did not include incarceration. W.B.J. now appeals the Fourth District Juvenile Court’s delinquency judgment, focusing exclusively on the denial of court-appointed counsel.

ISSUE

The trial court determined that W.B.Jl’s family could afford counsel. W.B.J. has not challenged that determination, nor has he challenged the adequacy of the indigence form. Thus, the only issue on appeal is whether the trial court must determine W.B.J.’s indigence by focusing exclusively on his separate resources.

STANDARD OF REVIEW

The Utah Supreme Court has determined “that the underlying empirical facts regarding the claim of indigency are reviewable for clear error; the conclusion as to whether those facts qualify the defendant as indigent is reviewable for correctness.” State v. Vincent, 883 P.2d 278, 282 (Utah 1994). Also, the “degree of discretion the legal standard for ‘indigency’ bestows on trial courts ... [is] a rather broad pasture for trial judges applying the law of indigency to the facts before them.” Id.; State v. Pena, 869 P.2d 932, 937-38 (Utah 1994).

The denial of the constitutional right to counsel requires reversal. See State v. Sampson, 808 P.2d 1100, 1111 (Utah Ct.App.1990), cert. denied, 817 P.2d 327 (Utah 1991), and cert. denied, 503 U.S. 914, 112 S.Ct. 1282, 117 L.Ed.2d 507 (1992). Reversal is not warranted, however, for the denial of a merely statutory right to counsel unless the appellant demonstrates the likelihood of a different result. See State v. Young, 853 P.2d 327, 361 (Utah 1993).

ANALYSIS

In the landmark case In re Gault, 387 U.S. 1, 87 S.Ct. 1428, 18 L.Ed.2d 527 (1967), the United States Supreme Court held that in

proceedings to determine delinquency which may result in commitment to an institution in which the juvenile’s freedom is curtailed, the child and his parents must be notified of the child’s right to be represented by counsel retained by them, or if they are unable to afford counsel, that counsel will be appointed to represent the child.

[297]*297Id. at 41, 87 S.Ct. at 1451 (emphasis added), W.B.J. argues, however, that Utah law requires the juvenile court to determine indigence by focusing exclusively on the juvenile’s separate resources. We disagree.

The United States Constitution requires appointed counsel only where the indigent is subject to incarceration. See id. The United States Supreme Court later unequivocally adopted “actual imprisonment as the line defining the constitutional right to appointment of counsel.” Scott v. Illinois, 440 U.S. 367, 373, 99 S.Ct. 1158, 1162, 59 L.Ed.2d 383 (1979). “Thus, Scott establishes an after-the-fact test that requires a reviewing court to find an uncounselled misdemeanor conviction constitutional when the defendant was not [incarcerated].” Layton City v. Longcrier, 943 P.2d 655, 658 (Utah Ct.App.), cert. denied, 953 P.2d 449 (Utah 1997), and cert. denied, — U.S. —, 118 S. Ct 1811, 140 L.Ed.2d 949 (1998). Given that W.B.J. was not incarcerated, no constitutional right to counsel is implicated in this case.

In Utah, however, our legislature has vested a juvenile with a statutory right to counsel beyond what the Constitution requires. Regardless of whether the juvenile faces confinement,

[t]he parents, guardian, custodian, and the minor, if competent, shall be informed that they have the right to be represented by counsel at every stage of the proceedings. They have the right to employ counsel of their own choice and if any of them requests an attorney and is found by the court to be indigent, counsel shall be appointed by the court.

Utah Code Ann. § 78-3a-913(l)(a) (Supp. 1998).2 The statute does not require that the juvenile personally invoke the right to counsel. Rather, it allows parents, guardian, custodian, or the minor, “any of them,” to request appointed counsel to represent the interests of an indigent juvenile. Id.

To determine whether a juvenile is indigent, the court considers the following factors:

“employment status and earning capacity; financial aid from family or friends; financial assistance from state and federal programs; [the defendant’s] necessary living expenses and liabilities; [the defendant’s] unencumbered assets, or any disposition thereof, and borrowing capacity; and, the relative amount of court costs to be waived.”

Vincent, 883 P.2d at 283-84 (quoting Kelsey v. Hanson, 818 P.2d 590, 591-92 (Utah Ct.App.1991) (per curiam)) (alteration in original) (footnotes omitted) (emphasis added).

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State in Interest of WBJ
966 P.2d 295 (Court of Appeals of Utah, 1998)

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Bluebook (online)
966 P.2d 295, 353 Utah Adv. Rep. 11, 1998 Utah App. LEXIS 86, 1998 WL 691399, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-in-interest-of-wbj-utahctapp-1998.