AS Title 18, Chapter 85: Public Defender Agency

Chapter 85. Public Defender Agency. Sec. 18.85.010. Public defender agency established. There is created in the Department of Administration a Public Defender Agency to serve the needs of indigent defendants. Sec. 18.85.020. Administration. The agency is administered by the public defender. Sec. 18.85.030. Appointment and term. The governor shall appoint the public defender from among two or more persons nominated for that position by the judicial council. The appointment is subject to confirmation by majority of the members of the legislature in joint session. The public defender shall serve a term of four years. If the governor decides to retain the public defender for another term, the governor need not call for nominations from the judicial council; however, the retention must be approved by a majority of the members of the legislature in joint session. Sec. 18.85.040. Removal. The public defender is subject to removal by the governor for good cause. If the public defender is removed, the governor shall submit to the legislature a report stating the reasons for removal. The report shall be submitted within 10 days after the action has been taken if the legislature is in session, or if the legislature is not in session, within 10 days after the convening of the next regular or special session. Sec. 18.85.050. Vacancy. If the position of public defender becomes vacant for any reason, the governor may appoint an acting public defender to serve until the regular appointment procedures under AS 18.85.030 are complied with. The governor and the judicial council shall act under AS 18.85.030 as soon as possible after the vacancy occurs. A person appointed under that section to fill a vacancy begins a new four-year term. Sec. 18.85.060. Eligibility. A person is not eligible to be the public defender or an assistant public defender unless admitted to the practice of law in this state no later than 10 months following the commencement of the person's employment by the agency. Sec. 18.85.070. Private practice prohibited. The public defender and assistant public defenders shall devote all of their time to the duties of their respective offices and may not engage in the practice of law except in their official capacities in the agency. Sec. 18.85.080. Delegation of functions. The public defender may assign the functions vested in the public defender or in the agency to subordinate attorneys and employees. Sec. 18.85.090. Agency staff. The public defender may appoint and remove assistant public defenders, clerks, investigators, stenographers, and other employees the public defender considers necessary to enable the public defender to carry out the responsibilities of the public defender, subject to existing appropriations. Each person appointed to a subordinate position established by the public defender is under the supervision and control of the public defender. Sec. 18.85.100. Right to representation, services, and facilities. (a) An indigent person who is under formal charge of having committed a serious crime and the crime has been the subject of an initial appearance or subsequent proceeding, or is being detained under a conviction of a serious crime, or is on probation or parole, or is entitled to representation under the Supreme Court Delinquency or Child in Need of Aid Rules or at a review hearing under AS 47.12.105 (d), or is isolated, quarantined, or required to be tested under an order issued under AS 18.15.355 — 18.15.395, or is a respondent in a proceeding under AS 47.30 , is entitled (1) to be represented, in connection with the crime or proceeding, by an attorney to the same extent as a person retaining an attorney is entitled; and (2) to be provided with the necessary services and facilities of this representation, including investigation and other preparation. (b) Subject to the provisions of AS 18.85.155 , the attorney services and facilities and the court costs shall be provided at public expense to the extent that the person, at the time the court determines indigency, is unable to provide for payment without undue hardship. Appointment of any guardian ad litem or attorney shall be made under the terms of AS 25.24.310 , to the extent that that section is not inconsistent with the requirements of this chapter. (c) An indigent person is entitled to representation under (a) and (b) of this section for purposes of bringing a timely application for post-conviction relief under AS 12.72 . An indigent person is not entitled to representation under (a) and (b) of this section for purposes of bringing (1) an untimely or successive application for post-conviction relief under AS 12.72 or an untimely or successive motion for reduction or modification of sentence; (2) a petition for review or certiorari from an appellate court ruling on an application for post-conviction relief; or (3) an action or claim for habeas corpus in federal court attacking a state conviction. (d) Notwithstanding (a) of this section, an indigent person is entitled to the representation and necessary services and facilities of representation as provided in (a) of this section when the prosecuting attorney or a law enforcement officer requests the court to provide representation to an indigent person under this section and the court finds that the provision of representation is necessary in the interests of justice. (e) Subject to other provisions of this subsection, a person who is the natural parent, adoptive parent, or guardian of a child who is taken into emergency custody of the state under AS 47.10.142 may be represented at public expense and without a court order by an attorney employed by the Public Defender Agency in connection with the hearing held under AS 47.10.142 (d). Representation in connection with the hearing may include investigation and other preparation before the hearing is held as well as representation at the hearing. Continued representation of the person by the Public Defender Agency after the hearing is held under AS 47.10.142 (d) is contingent on satisfaction of the eligibility requirements of (a) — (d) of this section, the issuance of an appropriate court order, and compliance with the applicable laws and court rules relating to court-appointed counsel employed at the public's expense. If a person who was represented by the Public Defender Agency at public expense without a court order in connection with a hearing held under AS 47.10.142 (d) is not later determined to be eligible for court-appointed counsel at public expense under applicable laws and court rules, the court shall assess against the represented person the cost to the Public Defender Agency of providing the representation. In this subsection, “guardian” means a natural person who is legally appointed guardian of the person of a child. (f) Notwithstanding (a) of this section, an indigent person is entitled to the representation and necessary services and facilities of representation as provided in (a) of this section when the person is a witness who refuses or there is reason to believe will refuse to testify or provide other information based on the privilege against self-incrimination. (g) An indigent person is entitled to representation under (a) and (b) of this section for purposes of bringing an application for post-conviction DNA testing under AS 12.73 . Sec. 18.85.110. Notice and provision for representation. (a) If a person having a right to representation under AS 18.85.100 is not represented by an attorney, the court shall, at the time of the person's appearance before the court, clearly inform the person of the right of an indigent person to be represented by an attorney at public expense. (b) [Repealed, § 6 ch 85 SLA 1996.] (c) [Repealed, § 6 ch 85 SLA 1996.] (d) If a court determines under AS 18.85.120 that an indigent person is entitled to be represented by an attorney at public expense, the court shall promptly notify the agency or the office of public advocacy. (e) Upon notification or assignment under this section, the agency or the office of public advocacy shall represent the person with respect to whom the notification or assignment is made. (f) [Repealed, § 6 ch 85 SLA 1996.] Sec. 18.85.120. Determination of indigency; repayment. (a) The determination of a person's indigency shall be made by the court in which an action against the person is pending. The determination shall be made by the court and shall set out the basis for the finding that the person is indigent. (b) In determining whether a person is indigent and in determining the extent of the person's inability to pay, the court shall consider such factors as income, property owned, outstanding obligations, and the number and ages of dependents. Release on bail does not preclude a finding that a person is indigent. In each case, the person, subject to the penalties for perjury, shall certify under oath, and in writing or by other record, material factors relative to the person's financial resources and ability to pay that the court prescribes. (c) Upon the person's conviction, the court may enter a judgment that a person for whom counsel is appointed pay for services of representation and court costs. Enforcement of a judgment under this subsection may be stayed by the trial court or the appellate court during the pendency of an appeal of the person's conviction. Upon a showing of financial hardship, the court (1) shall allow a person subject to a judgment entered under this subsection to make payments under a payment schedule; (2) shall allow a person subject to a judgment entered under this subsection to petition the court at any time for remission, reduction, or deferral of the unpaid portion of the judgment; and (3) may remit or reduce the balance owing on the judgment or change the method of payment if the payment would impose manifest hardship on the person or the person's immediate family. Payments made under this subsection shall be paid into the state general fund. (d) Except as provided in AS 18.85.100 (e), as a condition of receiving services under this chapter, a person shall affirm indigency under oath to the court and execute a general waiver authorizing the release to the court of income information regarding any income source the person has had for a period of three years immediately preceding the person's first court appearance in connection with each cause. At the conclusion of all services by the public defender to the person, the court shall upon request release to the attorney general all information received under this subsection except information that might incriminate or tend to incriminate the person. Sec. 18.85.130. Contracts with private attorneys. When the public interest requires, and a person is entitled to representation by the agency under this chapter, the public defender may contract with one or more private attorneys to assist the public defender. Except as provided in AS 18.85.155 , the public defender shall pay for these services out of appropriations to the agency. Sec. 18.85.140. Waiver. A person who has been appropriately informed under AS 18.85.100 may waive in writing, or by other record, any right provided by this chapter if the court concerned, at the time of or after waiver, finds of record that the person has acted with full awareness of the person's rights and of the consequences of a waiver. The court shall consider such factors as the person's age, education, familiarity with the English language, and the complexity of the crime involved in making the finding. Sec. 18.85.150. Recovery from defendant. (a) A person who has received assistance under this chapter shall pay the state for the assistance if the person was not entitled to it at the time indigency was determined. (b) The attorney general may bring an action on behalf of the state to recover payment from a person described in (a) of this section who refuses to make the payment. The action shall be brought within six years after the conclusion of the proceeding for which the assistance was provided. (c) [Repealed, § 5 ch 16 SLA 1974.] (d) Amounts recovered under this section shall be paid into the state general fund. Sec. 18.85.155. Payment by municipality. (a) When a municipality prosecutes a person who has been determined by the court to be indigent under AS 18.85.120 for a violation of a municipal ordinance that is a serious crime, the municipality shall pay for the services of the attorney appointed by the court to defend the indigent person. (b) A municipality shall provide for defense attorney services under (a) of this section by contracting with private attorneys or the agency or by establishing a municipal public defense agency. (c) In a prosecution subject to this section, the court may order the defendant to pay to the municipality the costs of the attorney services and other court costs to the extent that the defendant is able to do so. Sec. 18.85.160. Records and reports. (a) The public defender shall keep appropriate records respecting each needy person represented by the agency under this chapter. (b) [Repealed, § 19 ch 6 SLA 1998.] Sec. 18.85.170. Definitions. In this chapter, (1) “agency” means the public defender agency created by AS 18.85.010 ; (2) “detain” means to have in custody or otherwise deprive of freedom of action; (3) “expenses,” when used with reference to representation under this chapter, includes an expense of investigation, other preparation, and trial; (4) “indigent person” means a person who, at the time need is determined, does not have sufficient assets, credit, or other means to provide for payment of an attorney and all other necessary expenses of representation without depriving the party or the party's dependents of food, clothing, or shelter and who has not disposed of any assets since the commission of the offense with the intent or for the purpose of establishing eligibility for assistance under this chapter; (5) “serious crime” includes (A) a criminal matter in which a person is entitled to representation by an attorney under the Constitution of the State of Alaska or the United States Constitution; (B) an act that, but for the age of the person involved, would otherwise be a serious crime. Sec. 18.85.180. Short title. This chapter may be cited as the Public Defender Act.