GENERAL ASSEMBLY OF NORTH CAROLINA

SESSION 1997

H	1 

HOUSE BILL 1036

Short Title:  Restrict Indigent Counsel.	(Public)

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Sponsors: Representative Hardy.

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Referred to:  Judiciary I.

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April 21, 1997

A BILL TO BE ENTITLED
AN ACT TO RESTRICT ENTITLEMENT TO COUNSEL OF INDIGENT PERSONS TO THOSE INSTANCES IN WHICH THE FEDERAL COURTS HAVE INTERPRETED THE UNITED STATES CONSTITUTION TO REQUIRE THE APPOINTMENT OF COUNSEL.
The General Assembly of North Carolina enacts:
Section 1.  G.S. 7A-450(a) reads as rewritten:
"(a)	An indigent person is a person who is financially unable to secure legal representation and to provide all other necessary expenses of representation in an action or proceeding enumerated in this Subchapter, and who is entitled to the appointment of counsel under the decisions of the federal courts in interpreting the Constitution of the United States.  An interpreter is a necessary expense as defined in Chapter 8A of the General Statutes for a deaf person who is entitled to counsel under this subsection."
Section 2.  G.S. 7A-451 reads as rewritten:
"§ 7A-451.  Scope of entitlement.
(a)	An indigent person is entitled to services of counsel in 
																any action or proceeding in which the federal courts have interpreted the Constitution of the United States to require the appointment of counsel.
(b)	In any action or proceeding in which the federal courts have interpreted the Constitution of the United States to require the appointment of counsel, entitlement to the services of counsel begins as soon as feasible after the indigent is taken into custody or service is made upon him of the charge, petition, notice or other initiating process. Entitlement continues through any critical stage of the action or proceeding, including, if applicable:
(1)	An in-custody interrogation;
(2)	A pretrial identification procedure which occurs after formal charges have been preferred and at which the presence of the indigent is required;
(3)	A hearing for the reduction of bail, or to fix bail if bail has been earlier denied;
(4)	A probable cause hearing;
(5)	Trial and sentencing; and
(6)	Review of any judgment or decree pursuant to G.S. 7A-27, 7A-30(1), 7A-30(2), and Subchapter XIV of Chapter 15A of the General Statutes.
(c)	In any capital case, an indigent defendant who is under a sentence of death may apply to the superior court of the district where the defendant was indicted for the appointment of counsel to represent the defendant in preparing, filing, and litigating a motion for appropriate relief. The application for the appointment of such postconviction counsel may be made prior to completion of review on direct appeal and shall be made no later than 10 days from the latest of the following:
(1)	The mandate has been issued by the Supreme Court of North Carolina on direct appeal pursuant to N.C.R. App. P. 32(b) and the time for filing a petition for writ of certiorari to the United States Supreme Court has expired without a petition being filed;
(2)	The United States Supreme Court denied a timely petition for writ of certiorari of the decision on direct appeal by the Supreme Court of North Carolina; or
(3)	The United States Supreme Court granted the defendant's or the State's timely petition for writ of certiorari of the decision on direct appeal by the Supreme Court of North Carolina, but subsequently left the defendant's death sentence undisturbed.
If there is not a criminal or mixed session of superior court scheduled for that district, the application must be made no later than 10 days from the beginning of the next criminal or mixed session of superior court in the district. Upon application, supported by the defendant's affidavit, the superior court shall enter an order appointing two counsel if the court finds that the defendant is indigent and desires counsel. The defendant does not have a right to be present at the time of appointment of counsel, and the appointment need not be made in open court. If the defendant was previously adjudicated an indigent for purposes of trial or direct appeal, the defendant shall be presumed indigent for purposes of this subsection.
(d)	The appointment of counsel as provided in subsection (c) of this section and the procedure for compensation shall comply with the Rules and Regulations Relating to the Appointment of Counsel for Indigent Defendants pursuant to G.S. 7A-459. The court may appoint counsel recruited by the Appellate Defender pursuant to G.S. 7A-486.3(5).
(e)	No counsel appointed pursuant to subsection (c) of this section shall have previously represented the defendant at trial or on direct appeal in the case for which the appointment is made unless the defendant expressly requests continued representation and understandingly waives future allegations of ineffective assistance of counsel."
Section 3.  This act is effective when it becomes law and applies to acts committed, or causes of action arising, on or after that date.