People v. Cardenas , 62 P.3d 621 ( 2002 )

JUSTICE RICE

delivered the Opinion of the Court.

This original proceeding under C.A.R. 21 arises out of a criminal case currently pending in Logan County Court. The issue is whether the state must appoint, at its own expense, an interpreter to serve as a private translator for out-of-court discussions between a defendant and his pro bono attorney. We hold that the trial court did not abuse its discretion in refusing to appoint an interpreter for the Defendant under the circumstances of this case.

I. FACTS AND PROCEDURAL HISTORY

Defendant, Benjamin Cardenas, pled guilty in Logan County Court to one count of driving under the influence (DUI) and is currently awaiting sentencing. At the time his plea was taken, he was not represented by an attorney. However, when his case came before the court for sentencing, Janet Zimmerman, representing the Defendant pro bono, entered her appearance on his behalf.¹

Defendant is a Spanish-speaker who speaks no English. Because Ms. Zimmerman speaks no Spanish, she has been unable to have any substantive communication with her client. Her only information regarding the ease was derived from her discussions with one of Defendant’s friends, who apparently speaks some English.

At the sentencing hearing, Zimmerman notified the court of her belief that Defendant’s guilty plea was coerced by the state and was therefore involuntary. However, because of the language barrier between herself and Defendant, she could not learn sufficient details about the case in order to determine whether Defendant’s plea should be withdrawn. Rather than hire and pay for an interpreter in order to assist her in investigating the circumstances surrounding Defendant’s plea, Zimmerman requested that the trial court appoint, at state expense, an interpreter to serve in that capacity. The trial court denied Zimmerman’s request. The court, however, continued the sentencing date and arranged for an interpreter to be present at the next hearing solely for the purpose of translating the in-court proceedings. Defendant filed a petition pursuant to C.A.R. 21 and this court issued a rule to show cause. We now discharge the rule.

II. ANALYSIS

The issue in this case is the narrow question of whether the trial court abused its discretion in failing to provide, at state expense, a private interpreter to translate out-of-court discussions between Defendant and his pro bono attorney. We conclude that the answer is no.

Defendant relies on section 18-1-403, 6 C.R.S. (2002), in support of his argument that out-of-court interpreting services must be provided. In that section, the General Assembly expressed its intention to provide indigent defendants with legal representation at state expense:

[A]ll indigent persons who are charged with or held for the commission of a crime are entitled to legal representation and supporting services at state expense, to the extent and in the manner provided for in articles 1 and 2 of title 21, C.R.S.

§ 18-1-403, 6 C.R.S. (2002).² In Defendant’s view, because the cost of legal representation is being supplied pro bono by Ms. Zimmerman, the state need only pay for the cost of “supporting services,” namely, the cost of a private interpreter. Without an interpreter, Defendant, argues that Zimmerman will be unable to provide adequate and competent representation and he will therefore be deprived of his constitutional right to the assistance of counsel.

Defendant is correct in his assertion that all defendants have a fundamental right to be represented by counsel during criminal prosecution, and that indigent defendants are entitled to have counsel appointed at the expense of the state. See Colo. Const, art. II, § 16; Allen v. People, 157 Colo. 582, 404 P.2d 266 (1965); U.S. Const, amend VI; Gideon v. Wainright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963).

Although indigent defendants are entitled to state-paid legal representation and supporting services, Defendant fails to notice the last phrase in section 18-1-403 which provides that such representation is only, “to the extent and in the manner provided for in articles 1 and 2 of title 21, C.R.S.” § 18 — 1— 403, 6 C.R.S. (2002). The General Assembly has created an agency charged with providing legal representation and services to indigent defendants: the office of state public defender. See § 21-1-101 to -106, 6 C.R.S. (2002). Pursuant to section 21-1-103(3), 6 C.R.S. (2002), the public defender’s office, upon application from a defendant, is required to make a determination that the defendant is indigent before he may obtain the services of that office.

In this case, Defendant has not applied for the services of the public defender. Instead, he chose to be represented by Ms. Zimmerman. While an indigent defendant has the right to legal representation and supporting services at state expense, he does not have the right to pick the attorney of his choice. See People v. Coria, 937 P.2d 386 (Colo.1997); People v. Shook, 186 Colo. 339, 627 P.2d 816 (1974); Valarde v. People, 156 Colo. 375, 399 P.2d 245 (1965). If Defendant wants the state to pay the costs of his attorney and supporting services, his only choice is to be represented by the public defender, or in the case of a conflict, a state-appointed alternate defense counsel. See § 21-2-101 to -106, 6 C.R.S. (2002). While he certainly has a right to be represented by Ms. Zimmerman, the state is not obliged to pay the costs of that representation.

In addition, Defendant points to Chief Justice Directive 90-01 (amended Aug. 16, 2001), to support his view that the trial court should have appointed a translator. Chief Justice directives represent an expression of Judicial Branch policy, to be given full force and effect in matters of court administration. See Office of the State Court Adm’r v. Background Info. Servs., Inc., 994 P.2d 420, 431 (Colo.1999). Defendant reads directive 90-01, an expression of policy regarding the hiring of interpreters, much more broadly than we do. Pursuant to the directive, the only situation in which the appointment of a state-paid interpreter is mandatory is for translation of in-court proceedings. The directive, we conclude, does not require the trial court to appoint a private interpreter under the facts of this ease.

We encourage lawyers to engage in pro bono representation of indigent defendants. However, we have found no statute or case which would lead us to conclude that the trial court abused its discretion in refusing to appoint an interpreter for the Defendant.

III. CONCLUSION

The trial court did not abuse its discretion in refusing to appoint a private interpreter for Defendant. Accordingly, the rule to show cause is discharged.

Justice HOBBS dissents and Justice MARTINEZ joins in the dissent.

1 . Ms. Zimmerman initially told the court that she was entering only a "conditional appearance,” and that her further involvement would be conditioned on the appointment of a translator. The court stated that it would not accept a conditional or limited appearance and therefore Ms. Zimmerman entered her general appearance as counsel for Defendant.

2 . We note that there has been no finding in this case that Defendant is, in fact, indigent. Pursuant to section 21-1-103(3), 6 C.R.S. (2002), upon application by a defendant, the public defender's office must make a finding that a defendant is indigent before a defendant is entitled to representation by the public defender. The Defendant, who has been declared to be indigent in an unrelated case currently pending in Logan County District Court and who is represented by the public defender in that case, did not apply for representation by the public defender in this case.