Opinion
NO. 2015-CA-000135-MR
06-23-2017
TRAVIS SMITH APPELLANT v. COMMONWEALTH OF KENTUCKY APPELLEE
BRIEFS FOR APPELLANT: Heather Hodgson Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear Attorney General of Kentucky M. Brandon Roberts Assistant Attorney General Frankfort, Kentucky
NOT TO BE PUBLISHED APPEAL FROM HICKMAN CIRCUIT COURT
HONORABLE TIMOTHY A. LANGFORD, JUDGE
ACTION NO. 10-CR-00020 OPINION
REVERSING AND REMANDING
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BEFORE: CLAYTON, DIXON, AND D. LAMBERT, JUDGES. DIXON, JUDGE: Travis Smith appeals an order of the Hickman Circuit Court denying his RCr 11.42 motion for post-conviction relief. After careful review, we reverse and remand for further proceedings.
In January 2011, a jury found Smith guilty of complicity to first-degree burglary, complicity to first-degree robbery, and complicity to second- degree assault. The court sentenced Smith to twenty-two years imprisonment. On direct appeal, the Kentucky Supreme Court affirmed Smith's conviction, but reversed and remanded the portion of the judgment imposing court costs. Smith v. Commonwealth, 370 S.W.3d 871 (Ky. 2012).
The jury recommended concurrent sentences of ten years on first-degree burglary, twelve years on first-degree robbery, and five years on second-degree assault, for a total of twelve years. The trial court deviated from the recommendation and ordered the twelve-year and ten-year sentences to run consecutively, but concurrently with the five-year sentence, for a total of twenty-two years. --------
In March 2014, Smith, incarcerated at Luther Luckett Correctional Complex, filed a pro se RCr 11.42 motion alleging ineffective assistance of counsel, a motion to proceed in forma pauperis, a motion for evidentiary hearing, and a motion for appointment of counsel. The affidavit of indigency tendered with Smith's pleadings indicated he had no income, and the certified statement of his prison account showed a balance of $5.28, with deposits in the previous six-month period totaling $1,365.20. The court denied the motion for appointment of counsel, concluding the total amount of money that had been deposited in Smith's account established he was not indigent. Thereafter, the court determined Smith's RCr 11.42 motion raised issues that could not be determined on the face of the record and granted his request for an evidentiary hearing. In October 2014, Smith appeared pro se at the evidentiary hearing and renewed his request for appointed counsel. The court informed Smith his previous motion had been denied because the paperwork he submitted indicated he was not indigent. Smith ultimately acted as his own attorney and presented witness testimony from members of his family to support his allegations of ineffective assistance. On November 21, 2014, the court rendered an order denying RCr 11.42 relief. The court subsequently denied Smith's request to proceed in forma pauperis on appeal.
Smith filed a pro se notice of appeal and motion for appointment of counsel. He submitted an affidavit of indigency and his prison account statement, which showed a balance of $14.70 and deposits totaling $991.00 for the previous six months. The motion panel of this Court ordered the Department of Public Advocacy to review Smith's case and determine whether DPA intended to represent Smith on appeal pursuant to the guidelines set forth in KRS 31.110(2)(c). The DPA filed a response indicating appointment of counsel was warranted pursuant to the statute; thereafter, the motion panel granted Smith's motion for appointment of counsel.
On appeal, Smith argues the circuit court erred by denying his motion for appointment of counsel pursuant to RCr 11.42(5) and Fraser v. Commonwealth, 59 S.W.3d 448 (Ky. 2001). We agree.
RCr 11.42(5) states, in relevant part:
If the answer raises a material issue of fact that cannot be determined on the face of the record the court shall grant a prompt hearing and, if the movant is without counsel of record and if financially unable to employ counsel, shall upon specific written request by the movant appoint counsel to represent the movant in the proceeding, including appeal.
In Fraser, the Kentucky Supreme Court analyzed RCr 11.42(5), concluding the rule "establishes when a judge must appoint counsel for an indigent movant . . . [.]" Fraser, 59 S.W.3d. at 456. The Court succinctly explained, "If an evidentiary hearing is required, counsel must be appointed to represent the movant if he/she is indigent and specifically requests such appointment in writing." Id. at 453.
In the case at bar, the trial court concluded Smith's pro se RCr 11.42 motion raised allegations that warranted an evidentiary hearing; however, the court refused to appoint an attorney to represent Smith because the total amount of money that had been deposited in Smith's account established he was not indigent.
KRS 31.100(5)(a) defines an indigent person as, "A person eighteen (18) years of age or older . . . who, at the time his or her need is determined, is unable to provide for the payment of an attorney and all other necessary expenses of representation[.]" KRS 31.120(2)(a)-(m) sets forth several factors for the court to consider when determining whether a person is indigent, including: income, source of income, property owned, assets and obligations, complexity of the case, the amount a private attorney charges for similar services, and any other circumstances relevant to financial status.
We conclude the record does not support the trial court's determination Smith was not indigent. Smith is serving a twenty-two year prison sentence. He filed a motion for appointment of counsel, which he supported with an affidavit of indigency showing he had no assets and $5.28 in his prison account. Under these facts, at the time Smith's "need" was determined in March 2014, he was clearly "unable to provide for the payment of an attorney." KRS 31.100(5)(a). Pursuant to RCr 11.42(5), Smith was entitled to a court-appointed attorney to represent him in the post-conviction proceeding. We reverse the denial of Smith's RCr 11.42 motion and remand this matter to the trial court for a new hearing and appointment of counsel to represent Smith.
For the reasons stated herein, we reverse the order of the Hickman Circuit Court and remand for further proceedings consistent with this opinion.
ALL CONCUR. BRIEFS FOR APPELLANT: Heather Hodgson
Frankfort, Kentucky BRIEF FOR APPELLEE: Andy Beshear
Attorney General of Kentucky M. Brandon Roberts
Assistant Attorney General
Frankfort, Kentucky