Alaska

Criminal Procedure

Criminal Procedure

Rule 39 – Appointment of Counsel

(a)Informing Defendant of Right to Counsel. The court shall advise a defendant who appears without counsel for arraignment, change of plea, or trial of the right to be represented by counsel, and ask if the defendant desires the aid of counsel. The court shall not allow a defendant to proceed without an attorney unless the defendant understands the benefits of counsel and knowingly waives the right to counsel.
(b)Appointment of Counsel for Persons Financially Unable to Employ Counsel.

(1) If a defendant desires the aid of counsel but claims a financial inability to employ counsel, the court or its designee shall determine whether the defendant is eligible for court-appointed counsel under Criminal Rule 39.1.
(2) Before the court appoints counsel for an indigent defendant at public expense, the court shall advise the defendant that the defendant will be ordered to repay the prosecuting authority for the cost of appointed counsel, in accordance with paragraph (d) of this rule, if the defendant is convicted of an offense. The court may enter such orders as appear reasonably necessary to prevent the defendant from dissipating assets to avoid payment of this cost.
(3) If the court or its designee determines that a defendant is eligible for court-appointed counsel under Criminal Rule 39.1, the court shall appoint counsel pursuant to Administrative Rule 12 and notify counsel of the appointment.
(4) In the absence of a request by a defendant otherwise entitled to appointment of counsel, the court shall appoint counsel unless the court finds that the defendant understands the benefits of counsel and knowingly waives the right to counsel.
(5) If the trial court denies a defendant’s request for appointed counsel, the defendant may request review of this decision by the presiding judge of the judicial district by filing a motion with the trial court within three days after the date of notice, as defined in Criminal Rule 32.3(c), of the denial. The trial court shall forward the motion, relevant materials from the court file, and an electronic recording of any relevant proceedings to the presiding judge. The presiding judge or his or her designee shall issue a decision within three days of receipt of these materials.
(c)Costs of Appointed Counsel.

(1)Entry of Judgment.

(A) At the time of sentencing, revocation of probation, denial of a motion to withdraw plea, and denial of an application brought under Criminal Rule 35.1, the court shall inquire whether there is good cause why the court should not enter judgment for the cost of appointed counsel in the amount set out in subsection (d) of this rule. If no one asserts good cause to reduce the amount called for in subsection (d), the court shall enter judgment against the defendant in that amount. If it is alleged that there is good cause to reduce the normal amount, the court may either decide the issue at that time and enter judgment accordingly or schedule another hearing to consider the issue.
(B) If the court finds that the actual cost of appointed counsel is less than the amount of payment called for in subsection (d), the court shall not enter judgment in an amount greater than the actual cost of counsel.
(C) The judgment must be in writing. A copy of the judgment must be served on the defendant. The judgment bears interest at the rate specified in AS 09.30.070(a) from the date judgment is entered. The court shall order the defendant to apply for permanent fund dividends every year in which the defendant qualifies for the dividend until the judgment is paid in full.
(2)Collection.

(A) The judgment has the same force and effect as a judgment in a civil action in favor of the prosecuting authority and is subject to execution.
(B) All proceedings to enforce the judgment shall be in accordance with the statutes and court rules applicable to civil judgments. The judgment is not enforceable by contempt. Payment of the judgment may not be made a condition of a defendant’s probation. Default or failure to pay the judgment may not affect or reduce the rendering of services on appeal or any other phase of a defendant’s case in any way. A defendant does not have a right to be represented by appointed counsel in connection with proceedings under paragraph 39(c) or any proceedings to collect the judgment.
(C) Upon showing of financial hardship, the court shall allow a defendant subject to a judgment under this rule to make payments under a repayment schedule. A defendant may petition the court at any time for remission, reduction or deferral of the unpaid portion of the judgment. The court 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 defendant or the defendant’s immediate family.
(D) Notwithstanding section 39(c) (2) (B), a defendant may be held in contempt for failing to comply with an order under this rule to apply for a permanent fund dividend.
(3)Appeal.

(A) If the defendant appeals the conviction, enforcement of the judgment may be stayed by the trial court or the appellate court upon such terms as the court deems proper.
(B) If the defendant’s conviction is reversed, the clerk shall vacate the judgment and order the prosecuting authority to repay all sums paid in satisfaction of the judgment, plus interest at the rate specified in AS 09.30.070(a).
(d)Schedule of Costs. Except for good cause shown as provided in paragraph (c)(1), the following schedules govern the assessment of costs of appointed counsel under subsection (c). If a defendant is convicted of more than one offense in a single dispositive court proceeding, costs shall be based on the most serious offense of which the defendant is convicted. If a defendant is otherwise convicted of more than one offense, costs shall be separately assessed for each conviction. For good cause shown, the court may waive the schedule of costs and assess fees up to the actual cost of appointed counsel, including actual expenses.

Misdemeanors

Trial

$500.00

Change of plea

200.00

Post-conviction relief or contested probation revocation proceedings in the trial court

250.00

Felonies

Class B & C

Class A and Unclassified (Except Murder)

Murder in the 1st and 2nd Degrees

Trial

$1,500.00

$2,500.00

$5,000.00

Change of plea after substantive motion work and hearing and before trial commences

1,000.00

1,500.00

2,500.00

Change of plea post-indictment but prior to substantive motion work and hearing

500.00

1,000.00

2,000.00

Change of plea prior to indictment

250.00

500.00

750.00

Post-conviction relief or probation revocation proceeding in trial court

250.00

500.00

750.00
(e)Review of Defendant’s Financial Condition.

(1) The court may review a defendant’s financial status at any time after appointment of counsel to determine (A) whether the defendant continues to be eligible for court-appointed counsel under Criminal Rule 39.1; or (B) whether the defendant was eligible for court-appointed counsel when the appointment was made.
(2) If the court determines that a defendant is no longer eligible for court-appointed counsel under Criminal Rule 39.1, the court may

(A) terminate the appointment; or
(B) continue the appointment and, at the conclusion of the criminal proceedings against the defendant in the trial court, enter judgment against the defendant for the actual cost of appointed counsel, including actual expenses, from the date of the change in the defendant’s financial status through the conclusion of the trial court proceedings.
(3) If the court determines that a defendant was not eligible for court-appointed counsel when the appointment was made, the court may

(A) terminate the appointment and enter judgment against the defendant for the actual costs of appointed counsel, including actual expenses, from the date of appointment through the date of termination; or
(B) continue the appointment and, at the conclusion of the criminal proceedings against the defendant in the trial court, enter judgment against the defendant for the actual cost of appointed counsel from the date of the appointment through the conclusion of the trial court proceedings.
(4) A defendant may request review of the court’s decision to terminate the appointment according to the procedure set out in subparagraph 39(b) (5).
(5) Judgment may be entered against a defendant under this paragraph regardless of whether the defendant is convicted of an offense.

Alaska R. Crim. P. 39

Adopted by SCO 4 October 4, 1959; amended by SCO 90 effective July 24, 1967: by SCO 157 effective February 15, 1973; by Amendment No. 4 to SCO 157 dated March 12, 1973; by SCO 187 effective July 2, 1974; by SCO 328 effective January 1, 1979; by SCO 448 effective November 24 1980; by SCO 677 effective June 15, 1986; and by SCO 888 effective July 15, 1988; rescinded and re-promulgated by SCO 1088 effective July 1, 1992; amended by SCO 1139 effective July 1, 1993; by SCO 1145 effective October 1, 1993; by SCO 1351 effective May 15, 1999; by SCO 1555 effective October 15, 2004; and by SCO 1566 effective May 15, 2005