If you meet with the statutory definition of “indigence” for purposes of appeal, yes. It is important to remember that indigence, in this context, means something specific—it doesn’t necessarily mean that a person is in a state of extreme poverty or without any financial means.
Idaho, by statute, authorizes a trial court to appoint counsel in criminal appeals if the court finds that the defendant qualifies as indigent for purposes of an appeal. [xxiv] The standard for whether a person qualifies for appointed counsel is whether he or she is unable to provide for the payment of counsel and all other necessary costs of representation. [xxv] Some people are going to be presumed to qualify for appointed counsel – this includes those whose monthly income does not exceed one hundred eighty-seven percent (187%) of the federal poverty guidelines, who receive public assistance, or persons either housed in a correctional facility on a mental health facility. [xxvi]
While falling into any of these categories makes a person presumptively eligible for the appointment of counsel, these are not the exclusive means through which a person may show he or she qualifies. Idaho Code § 19-854 states that the “court concerned may determine that persons other than those described in subsection (2) of this section are indigent persons.” [xxvii] The statute lists other considerations such as income, property owned, outstanding financial obligations, the number of children or dependents in a household, or the costs of bail. And even this list is not exhaustive. The statute frames these factors as representative of the types of considerations that may be made, but the plain text of the statute makes clear than other factors that are salient to whether someone has the ability to pay for the full services of representation may also be considered. [xxviii]
When looking at whether a person may qualify for appointed counsel on appeal, more than just the costs for an attorney’s time should be considered. Unless counsel is appointed, at least in the initial stages of the case, a defendant who is appealing in a criminal case must also pay for the creation of a record on appeal. Among the “other necessary expenses of representation” for an appeal is the requirement that a defendant pay for the fees associated with the creation of the Reporter’s Transcript and the Clerk’s Record up front, unless such person is represented by appointed counsel in a criminal appeal. [xxix] The estimated fee for a Clerk’s Record is $1.25 per page within the record; the Reporter’s Fee is based upon the court reporters’ own estimate but is presumed to be $200 in absence of that estimate.[xxx] And if a defendant fails to pay for this record in a timely manner, the appeal itself is in danger of being dismissed.
For these reasons, a defendant in a criminal case who is considering an appeal may want to also think about whether he or she may qualify for appointed counsel, at least at the initiation of the appellate case.