111.4Determining Indigency

Overview

When an unrepresented defendant is charged with a felony, or a misdemeanor in which imprisonment or a fine of $500 or more is likely to be adjudged, a trial judge in both district and superior courts must determine whether the defendant is indigent. (AOC-CR-226, Affidavit of Indigency). If the defendant is indigent, the court must either appoint counsel or obtain a waiver of representation from the defendant (except appointment of counsel in capital cases is done by the Office of Indigent Defense Services). See G.S. 7A-450; State v. Sanders, 294 N.C. 337 (1978); AOC-CR-227 (Waiver of Counsel). Even though a district court judge reviews a defendant’s indigency at the first appearance in felony cases, a superior court judge must re-examine the question of indigency at arraignment in superior court and must comply with G.S. 15A-942 and 15A-603 in advising the defendant of rights. G.S. 15A-1012; Sanders, 294 N.C. 337 (1978); State v. Williams, 65 N.C. App. 498 (1984). For more information, see the related entry on Arraignment. 

Definition and Standard of Indigency

G.S. 7A-450(a) provides the basic definition of indigency: “An indigent person is a person who is financially unable to secure legal representation and to provide all other necessary expenses of representation . . . .” Likewise, an indigent defendant is one who “lacks sufficient funds over and above his homestead and personal property exemptions and his pre-existing debts and obligations to pay the total costs of his defense from beginning to end. An indigent is one who does not have available at the time they are required, adequate funds to pay a necessary cost of his defense.” State v. Hoffman, 281 N.C. 727, 738 (1972).

In limited instances, such as in juvenile or competency matters, indigency is not required. See G.S. 7B-2000 (juvenile in delinquency case presumed indigent); G.S. 35A-1107 (attorney is appointed as guardian ad litem in incompetency proceeding unless respondent retains counsel); IDS Rule 4.2 (no requirement that court determine indigency for inmates in custody of Department of Adult Correction and entitled to legal representation to ensure access to courts). 

The standard for indigency is a flexible one, depending not only on the defendant’s resources but also on the anticipated expenses of litigation. There are only a few decisions addressing the standard, and the specific dollar amounts cited in older cases may not be particularly useful as a guide today. See State v. Cradle, 281 N.C. 198 (1972) (trial court erred in finding that defendant was not indigent when there was no record evidence contradicting her affidavit of indigency); State v. Wright, 281 N.C. 38 (1972) (defendant who earned $149 per month, had car payments of $56 per month, had debts of $4,000, and had savings of approximately $50, was indigent); State v. Haire, 19 N.C. App. 89 (1973) (evidence that defendant was a painter capable of earning $60 per week when he was able to obtain work, and that he had made little effort to secure counsel, did not support finding that defendant was not indigent); see also G.S. 7A-498.5(c)(8) (authorizing IDS to adopt standards for determining indigency). 

Procedure

Indigency may be determined or re-determined by the court at any stage of an action, usually following review of defendant’s affidavit of indigency. G.S. 7A-450(c) and (d); 7A-452; 7A-453; 7A-455; AOC-CR-226. Indigency may also be re-determined at any stage of the proceedings. See G.S. 7A-450(c); see also State v. Sanders, 294 N.C. 337 (1978) (although defendant may not have been indigent when first two indictments were returned, court was not excused from advising defendant of right to counsel and inquiring about indigency when defendant was arraigned on third indictment; that defendant was able to retain counsel on appeal after conviction did not show he was not indigent when tried); State v. Hoffman, 281 N.C. 727, 738 (1972) (an indigent person is “one who does not have available, at the time they are required, adequate funds to pay a necessary cost of his defense”).

As noted above, all juveniles alleged to be delinquent are “conclusively presumed to be indigent, and it shall not be necessary for the court to receive from any juvenile an affidavit of indigency.” G.S. 7B-2000(b).

North Carolina has a statute on “partial indigency,” which provides that the court may require an individual to pay for part of his or her legal expenses, if he or she is able to do so. See G.S. 7A-455(a). The statute is actually a “recoupment” statute; it does not appear to authorize a court to require a person to pay a portion of the legal fees up front. It only permits the court to impose such an obligation at the conclusion of the proceedings if the defendant is convicted.