Scope of Entitlement for Indigent Services

Any person, including non-citizens, is entitled to representation and, if that person cannot afford an attorney, both the United States Constitution and North Carolina law guarantee that person the right to an attorney.

The attorney – whether he or she is a public defender who works in the Wake County Public Defender’s Office or a private attorney contracted by the statewide office of Indigent Defense Services (IDS) – is not necessarily free. If the person is convicted, whether by plea or at trial, the person may be ordered to pay the cost of the attorney whether as part of the criminal judgment or through a civil judgment by the state against the individual.

N.C.G.S. 7A-451 lays out the scope of entitlement, which are the various hearings or events when a person may be entitled to have appointed counsel present.

The key feature of a court appointed lawyer in the state courts is that the right to the lawyer for an indigent person does not attach until the person is arrested and charged with a crime. Once the person is arrested and charged, the person then is informed at his First Appearance (in front of a District Court judge) of his right to a lawyer. He is asked whether he wants to hire a lawyer, have a lawyer appointed, or represent himself.

If he indicates that he wants to have a lawyer appointed by the court because he cannot afford a lawyer, he is usually instructed to fill out an affidavit of indigence, which is a sworn form on which he lists his assets, income, and liabilities or obligations. If the judge determines that he is in fact indigent, a Wake County District Court judge will appoint the Wake County Public Defender’s office (who will, in turn, represent the person by assigning the case to a Public Defender or assign the case to a private lawyer on one of the appointment lists.)

If the judge determines that the person is not indigent or the person indicates he will hire his own lawyer, the person is then left to select, hire, and pay a private lawyer to represent him during his case.

A private lawyer may enter a notice of appearance (verbally in open court or in writing or by filing a motion) which is either limited to a specific part of the case or a general appearance for the entirety of the case up to and including trial.

In the federal system, an individual may request an appointed lawyer after he receives a Target Letter from the United States Attorney or after in certain cases involving testimony at a grand jury.

In the state system, no such right exists, and an individual is not entitled to any representation prior to arrest. Consequently, many people do not seek lawyers prior to arrest, which means that they are oftentimes left without adequate legal advice during the most crucial stage of their cases.

In any Raleigh criminal matter, it makes sense to have a lawyer from as early a point as possible, even if ultimately you may not be able to afford the lawyer through the whole case. Having a lawyer early in a case can protect your rights at a vital time.

Damon Chetson

Damon Chetson is a Board Certified Specialist in State and Federal Criminal Law. He represents people charged with serious and minor offenses in Raleigh, Wake County, and the Eastern District of North Carolina. Call (919) 352-9411.