Roger Harris v. State

IN THE COURT OF CRIMINAL APPEALS OF TENNESSEE
AT KNOXVILLE FILED
NOVEMBER 1998 SESSION
January 28, 1999
Cecil Crowson, Jr.
Appellate C ourt Clerk
ROGER HARRIS, )
) C.C.A. No. 03C01-9712-CR-00516
Appellant, )
) Unicoi County
v. )
) Honorable Lynn W . Brown, Judge
STATE OF TENNESSEE, )
) (Interlocutory Appeal)
Appellee. )
FOR THE APPELLANT: FOR THE APPELLEE:
Jeffery Craig Kelly John Knox Walkup
Assistant Public Defender Attorney General & Reporter
142 East Market Street 425 Fifth Avenue, North
P. O. Box 996 Nashville, TN 37243-0493
Johnson City, TN 37605
Ellen H. Pollack
Assistant Attorney General
425 Fifth Avenue, North
Nashville, TN 37243-0493
David E. Crockett
District Attorney General
Route 19, Box 99
Johnson City, TN 37601
Kent W. Garland
Assistant District Attorney General
Unicoi County Courthouse
Erwin, TN 37650
OPINION FILED: __________________________________
REVERSED AND REMANDED
L. T. LAFFERTY, SENIOR JUDGE
OPINION
The appellant, Roger Harris, appeals pursuant to Rule 10, Tenn. R. App. P., from
an order of the trial court ordering the appellant’s family to pay $500 to the Unicoi County
Public Defender before allowing substitution of counsel. The state agrees the trial court
erred in ordering such payment. After a review of the record in this cause, briefs of the
parties, and appropriate law, we agree. The trial court’s order is reversed, and the cause
is remanded for consideration of substitution of private counsel without requiring the
appellant’s family to pay $500 to the Public Defender.
BACKGROUND
On March 15, 1995, the appellant filed a petition for post-conviction relief in the
Unicoi County Criminal Court. In June, 1991, the appellant was found guilty of first degree
murder and reckless endangerment with a deadly weapon. The appellant was sentenced
to life in prison for the murder charge and to two years imprisonment for the reckless
endangerment with a deadly weapon charge. In his petition, the appellant alleged
ineffective assistance of counsel at both the trial and appellate levels. Shortly after the
appellant’s petition was filed, the Public Defender’s office was appointed to represent the
appellant due to indigence. The record reflects two amendments to the post-conviction
petition were filed by the Public Defender. For various reasons, the petition was continued
to October, 1997.
On September 23, 1997, Kenneth F. Irvine, Jr., Esq. filed an entry of appearance
in behalf of the appellant. On October 17, 1997, the trial court conducted a hearing on the
appellant’s request for substitution of counsel and a continuance. Mr. Irvine appeared at
the hearing. During the discussion with counsel, the trial court expressed its concern over
the inability to dispose of the cause. Mr. Irvine advised the trial court that the appellant was
still incarcerated, but the appellant’s family was willing to pay his fee, and he would be
ready to dispose of the petition within thirty days. The trial court determined that the Public
Defender had invested approximately 25 hours in its representation of the appellant at a
rate of $40 per hour. The trial court determined that the appellant’s representation cost the
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taxpayers in excess of $1,000.
It is clear from the record that the trial court was irritated with the appellant’s family
suddenly coming forth with the funds to pay private counsel at such late date. The trial
court permitted the substitution of counsel with the requirement that the appellant’s family
pay $500 to the Public Defender’s fund. The trial court cited no authority for its ruling. An
order was entered on November 7, 1997, reflecting the conditional grant of the appellant’s
request for substitution of counsel and resetting the case for December 9, 1997 to
determine if the family had paid the $500.
LEGAL ANALYSIS
In his interlocutory appeal to this Court, the appellant asserts that the trial court
erred in requiring his family to pay $500 to the Public Defender before allowing substitution
of private counsel. The state agrees with the appellant’s position. We agree with both
parties that the trial court was in error and remand for further proceedings.
In an analogous case, this Court, in State v. Gardner, 626 S.W.2d 721, 724 (Tenn.
Crim. App. 1981), reversed a trial court’s decision denying appointed counsel, where the
defendant’s father had previously posted the defendant’s bond. This Court held:
The financial condition of a defendant’s relatives has no
bearing on the question of the defendant’s solvency. Sapio v.
State, 223 So. 2d 759, 760-61 (Fla. App. 1969). Relatives who
have heretofore come to the aid of an accused cannot be
looked to as the source of funds for an accused, as there is no
legal way to force them to provide for their adult child. State v.
VanGorder, 192 Iowa 353, 184 N.W. 638, 639 (1921).
The question in inquiries as to insolvency is not whether the
defendant’s friends or spouse or relatives have the ability or
readiness or willingness to provide the funds, but whether the
defendant personally has the means to employ an attorney to
represent him.
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Id.
It is clear that the appellant is indigent after being incarcerated for many years, and,
therefore, is unable to hire private counsel to assist in the presentation of his petition for
post-conviction relief.
The trial court’s order is reversed, and the cause is remanded for consideration of
substitution of private counsel without requiring the appellant’s family to pay $500 to the
Public Defender.
________________________________________
L. T. LAFFERTY, SENIOR JUDGE
CONCUR:
___________________________________
DAVID H. WELLES, JUDGE
___________________________________
JAMES CURWOOD WITT, JR., JUDGE
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