120-1-03 Standards of indigency.

The Ohio public defender commission's standards for determining indigency status are promulgated pursuant to sections 120.03 and 120.05 of the Revised Code. Further considerations include State vs. Tymcio (1975), 42 Ohio St.2d. 39 and the Ohio supreme court rules of superintendence. The pivotal issue in determining indigency is not whether the applicant ought to be able to employ counsel but whether the applicant is, in fact, able to do so.

(A) Criteria: When any court is required by law to appoint counsel for any applicant asserting indigent status, the basic criteria for determining indigency status shall include:

(1) Wages and earnings from employment, unemployment compensation, workers compensation, child support pension/social security compensation, Ohio works first/temporary assistance to needy families (TANF) program compensation, disability compensation, and all other similar forms of compensation/governmental assistance comprising household income;

(2) Other financial assets, including but not limited to available cash reserves in savings and checking account, stocks, bonds, certificate of deposit, or other liquid assets; other similar ownership or entitlement to available financial resources with which the applicant might hire legal counsel; but excluding property necessary to maintain employment;

(3) Consideration of the number and age of the applicant's dependents;

(4) Consideration of basic living costs, including housing rent and/or mortgage payments, child support actually paid, child care expenses (for employed applicants only), health insurance, medical/dental expenses, Associated costs of caring for infirm family member, employment transportation costs, cost of fuel, food, telephone, utilities, taxes owed, credit cards/other loan payments and other similar basic costs of living;

(5) Consideration of court-imposed obligations, any bail/bond expenses for the particular offense at issue, and other similar costs associated with the particular legal proceeding.

(6) If the spouse of the applicant is the victim, the spouse's income shall not be included for the determination of indigency.

(B) Marginally indigent. Applicants that are marginally indigent must be appointed counsel. One who is marginally indigent has a total monthly gross income that is less than 187.5 per cent of the current federally established poverty levels, pursuant to the "Federal Poverty Guidelines" published in the Federal Register by the U.S. department of health and human services. Those who are marginally indigent shall be subject to recoupment, contribution, or partial payment program as set forth in section 120.03 of the Revised Code.

(C) Presumptive eligibility. Any applicant for indigency status lacking other substantial liquid assets, spousal income or other sources of income is presumed indigent and thus entitled to the appointment of counsel under any of the following circumstances:

(1) The applicant's total monthly income is one hundred twenty-five per cent or less of the current federally established poverty levels, pursuant to the "Federal Poverty Guidelines" published in the Federal Register by the U.S. department of health and human services. Those whose total monthly income is one hundred twenty-five per cent or less of the current federally established poverty levels shall not be subject to recoupment, contribution, or partial payment program. These guidelines are available, on request, from the Ohio public defender commission;

(2) The applicant currently receives public assistance and thus has been deemed eligible for federal supplemental security income (SSI), medicaid, aid to families with dependent children (AFDC), general assistance, food stamps, refugee settlement benefits, poverty-related veterans' benefits, or other similar poverty-based governmental financial assistance;

(3) Any applicant who at the time of application has been committed to a public mental health facility;

(4) Any applicant who at the time of application is incarcerated in a state penitentiary;

(5) Juveniles are presumed indigent. In determining the eligibility of a child for court-appointed counsel in juvenile court, only the juvenile's income shall be considered when determining if counsel should be appointed.

(a) A juvenile applicant's parent should complete the recoupment component of the affidavit, as the juvenile's parents may be subject to recoupment, contribution, or partial payment program as set forth in section 120.03 of the Revised Code and rule 120-1-05 of the Administrative Code. However, a parent's refusal to complete the recoupment component of the affidavit of indigency shall in no way impede the appointment of counsel for the juvenile.

(b) If a parent is the victim or the relative of a victim the parent is not required to include their income for recoupment, contribution, or partial payment purposes.

(D) Presumptive ineligibility. Any applicant for indigency status can be presumed not entitled to the appointment of counsel under any of the following circumstances:

(1) The applicant's total monthly income, exceeds 187.5 per cent of the federal poverty levels, pursuant to the "Federal Poverty Guidelines" published in the Federal Register by the U.S. department of health and human services.

(2) The applicant possesses monies and/or liquid assets that exceed one thousand dollars, and the applicant is accused of a misdemeanor violation and no felony.

(3) The applicant possesses monies and/or liquid assets that exceed five thousand dollars, and the applicant is accused of any felony violation.

(4) A liquid asset is cash or an asset that is payable on demand. Available credit to the applicant shall not be considered a liquid asset.

(E) The ability to contribute a portion of the cost of quality legal representation shall not preclude eligibility for assigned/appointed counsel. If an applicant who is not indigent is able to show that they have tried to employ counsel, but is still unable to employ counsel, then the court must appoint counsel in accordance with State vs. Tymcio (1975), 42 Ohio St. 2d 39. Those who qualify under Tymcio, shall be subject to recoupment, contribution, or partial payment program as set forth in section 120.03 of the Revised Code and rule 120-1-05 of the Administrative Code.

(F) Redetermination. A preliminary determination of ineligibility for legal representation shall not foreclose a redetermination of eligibility when, at any subsequent stage of a proceeding, new information or changes in circumstances affecting the applicant's financial status becomes known.

(G) Confidentiality. Court rules, regulations, and/or procedures concerning the determination of initial eligibility and/or continued eligibility shall not require assigned/appointed counsel and/or public defenders to make any disclosures concerning the applicant's financial status beyond those disclosures necessary to the court's determination of indigency status, pursuant to section 120.38 of the Revised Code.

(H) Other prohibitions. The process of applying for publicly provided counsel shall not serve to deter any applicant from exercising any constitutional, statutory, or procedural rights, including, but not limited to, the following:

(1) Stringent application of financial eligibility standards shall not cause an applicant to waive representation of counsel rather than incur the expense of retained counsel.

(2) The applicant's exercise of the right to counsel shall not be conditioned upon the waiver of any other constitutional, statutory, or procedural rights.

(I) Requests for specific appointed counsel. When a defendant makes a request for a specific appointed counsel pursuant to division (A) of section 120.33 of the Revised Code, such request shall be considered and decided by the court.

(J) When an applicant who is not indigent is appointed counsel, the county may recoup moneys for the services provided in accordance with section 120.03 of the Revised Code and rule 120-1-05 of the Administrative Code.

(K) Financial disclosure form. A form requesting relevant information from the applicant shall be completed for each applicant prior to the appointment of counsel or as soon thereafter as practicable. Each county shall use the current application for court-appointed representation form as is available from the office of the Ohio public defender or any similar form that is first approved by the Ohio public defender.

Replaces: 120-1-03

Effective: 10/09/2009
R.C. 119.032 review dates: 10/08/2014
Promulgated Under: 111.15
Statutory Authority: 120.03(B)
Rule Amplifies: 120.03(B)(1)
Prior Effective Dates: 1/9/78, 9/27/91, 1/1/96, 1/1/00