by Matt Clarke

In a case of first impression, the Supreme Court of Colorado announced that when calculating financial means to hire an attorney in determining whether a defendant is indigent and thus entitled to court-appointed counsel the parents’ income in a joint household is excluded from the indigency calculation unless the defendant has access to the parents’ income.

Nicholas Feyd Greer was charged with careless driving and leaving the scene of an accident. He applied for court-appointed counsel by completing Judicial Department Form (“JDF”) 208. In attempting to establish his indigency, he reported that he has no income or assets and that he and his daughter live rent-free with his parents, who pay all household expenses—but they do not otherwise permit Greer access to their income or assets. In filling out the form, he disclosed that his household’s monthly gross income is $7,200 and monthly expenses are approximately $6,000.

Following a review of JDF 208, the public defender determined that Greer is indigent and qualifies for court-appointed counsel. But the county court challenged that determination based on Chief Justice Directive (“CJD”) 04-04, which instructs courts to consider the gross income of all members of the defendant’s household who contribute monetarily. Based on the directive, the county court included his parents’ income in its indigency determination.

The public defender argued that Greer’s parents’ income shouldn’t be included in his indigency determination because they have “not chosen to share their income” with him, i.e., he has no access or right to their income or assets other than being allowed to live in their home. Furthermore, they aren’t willing to pay for an attorney. Under these facts, the public defender likened Greer’s parents to “roommates” whose income is excluded under Attachment A to CJD 04-04, Fiscal Standards—Eligibility Scoring Instrument.

The roommates provision of Attachment A instructs that a roommate’s income should not be considered if their income is not “commingled in accounts or otherwise combined with the [defendant’s] income in a fashion which would allow the [defendant] proprietary rights to the roommate’s income.” The public defender’s argument persuaded the prosecution, which agreed that Greer qualifies for court-appointed counsel.

However, the county court was unmoved and denied Greer’s unopposed application. It determined that his parents have money to hire an attorney and rejected the roommate analogy. The Colorado Supreme Court exercised its original jurisdiction under C.A.R. 21(a)(1) to hear Greer’s appeal because “he had no other adequate remedy and the case presented an issue of first impression that was of great public importance.”

The Court began its analysis by observing the Sixth Amendment guarantees the assistance of counsel as a fundamental right. Argersinger v. Hamlin, 407 U.S. 25 (1972). Similarly, the Colorado Constitution guarantees the right to counsel in criminal proceedings. Colo. Const. art. II, § 16. The defendant is entitled to a court-appointed counsel if indigent. People v. Alengi, 148 P.3d 154 (Colo. 2006). The burden of establishing indigency is on the defendant. Nikander v. Dist. Ct., 711 P.2d 1260 (Colo. 1986).

The Court noted that the defendant need not be destitute to qualify for court-appointed counsel; it’s enough that the defendant lacks “the necessary funds, on a practical basis, to retain competent counsel.” Id. And the indigency determination is based on what is, not what could be, i.e., the fact that defendant could work more hours to increase income is irrelevant. Id.

The Court stated that to answer the question of whether Greer is indigent it must look to CJD 04-04 and Attachment A thereto. It cited to the following language of Attachment A, 1. Income Guidelines, NOTE: “Income from roommates should not be considered if such income is not commingled in accounts or otherwise combined with the Applicant’s income in a fashion which would allow the applicant proprietary rights to the roommate’s income.” Similarly, JDF 208 states: “Don’t include income from roommates. Only include their incomes if you share bank accounts or commingle funds.”

The Court explained that “a court should consider roommates’ income only if the defendant has access to it.” It further explained the roommates provision tracks the Supreme Court’s decision in Nikander, which “teaches that the indigency question turns on whether the defendant (not his family), on a practical basis, lacks the necessary funds to retain an attorney.” Thus, the Court held “income from members of a defendant’s household who contribute monetarily to the household should be excluded from an indigency determination when such income is unavailable to the defendant.”

Turning to Greer’s financial situation, the Court stated that while he lives with his parents rent-free he still lacks any funds with which he can hire a lawyer. His parents have placed their income and assets out of his reach, as is their right, so those funds can’t be used in determining whether Greer has the financial means to hire a lawyer, according to the Court. Given these facts, denying Greer indigent status based on his parents’ financial means “would be tantamount to denying him equal access to the legal process on the basis of his poverty,” the Court stated and declared, “This we refuse to do.”

Thus, the Court concluded that the county court erred in denying Greer court-appointed counsel on the basis of his parents’ income.

Accordingly, the Court made the rule absolute and remanded the case to the county court for further proceedings consistent with this opinion. See: People v. Greer, 502 P.3d 1012 (Colo. 2022). 

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