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Date: 04-01-2020
Case Style:
State of North Dakota v. Blain Ovind
Case Number: 2020 ND 51
Judge: Gerald W. VandeWalle
Court: IN THE SUPREME COURT
STATE OF NORTH DAKOTA
Plaintiff's Attorney: Allen M. Koppy, Morton County State’s Attorney
Defendant's Attorney:
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In April 2018, Ovind was charged with two counts of construction fraud,
two counts of acting as a contractor without a license, and one count of
disobedience of a judicial order. On October 3, 2018, Ovind submitted an
application for indigent defense services. On his application, Ovind listed his
wife’s income. His wife was employed full time and was paid $18.48 an hour,
which equates to approximately $2,956.80 per month. Ovind’s request for
appointed counsel was denied because his household income exceeded the
maximum amount to be declared indigent. Ovind again requested appointed
counsel on December 21, 2018, arguing his wife’s income should not be
considered because it went toward their living expenses. His request was again
denied because his household income exceeded the maximum amount to be
declared indigent.
[¶3] On June 11, 2019, the case proceeded to trial, and Ovind represented
himself at trial. A jury found Ovind guilty on all counts. On August 26, 2019,
Ovind submitted a third request for court-appointed counsel for sentencing,
post-judgment motions, and appeal. Ovind’s third request was denied.
II
[¶4] The right to counsel in a criminal case is required by the Sixth
Amendment of the United States Constitution and by the North Dakota
Constitution. U.S. Const. amend. VI (“In all criminal prosecutions, the accused
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shall enjoy the right to . . . have the Assistance of Counsel for his defence.”);
N.D. Const. art. I, § 12 (“In criminal prosecutions in any court whatever, the
party accused shall have the right to . . . appear and defend in person and with
counsel.”); Gideon v. Wainwright, 372 U.S. 335 (1963) (holding the Sixth
Amendment’s right to counsel applies to the states through the due process
clause of the Fourteenth Amendment); John v. State, 160 N.W.2d 37, 44 (N.D.
1968) (recognizing the holding in Gideon v. Wainwright).
[¶5] A criminal defendant’s right to counsel is provided through
N.D.R.Crim.P. 44(a), which states:
(1) Felony Cases. An indigent defendant facing a felony
charge in state court is entitled to have counsel provided at public
expense to represent the defendant at every stage of the
proceeding from initial appearance through appeal, unless the
defendant waives this right.
(2) Non-Felony Cases. An indigent defendant facing a nonfelony charge in state court is entitled to have counsel provided at
public expense to represent the defendant at every stage of the
proceeding from initial appearance through appeal, unless the
defendant waives this right or the magistrate determines that
sentence upon conviction will not include imprisonment.
(3) Non-Indigent Defendants. The court may appoint counsel
to represent a defendant at the defendant’s expense if the
defendant is unable to obtain counsel and is not indigent.
“The right to appointed counsel is a limited right, not an absolute right.” State
v. Schneeweiss, 2001 ND 120, ¶ 7, 630 N.W.2d 482 (citing State v. DuPaul, 527
N.W.2d 238, 240-41 (N.D. 1995)). “We have cautioned there is no legal reason
to appoint counsel for defendants who can afford to obtain their own counsel.”
Id. (citing DuPaul, 527 N.W.2d at 241); State v. Fontaine, 382 N.W.2d 374, 375-
76 (N.D. 1986). “Defendants bear the burden of proving they are indigent and
qualify for appointed counsel.” Schneeweiss, at ¶ 10 (citing DuPaul, 527
N.W.2d at 242). “On review of a trial court’s denial of a request for appointed
counsel, we inquire whether the trial court acted arbitrarily, unconscionably,
or unreasonably.” Id. at ¶ 7 (citing DuPaul, 527 N.W.2d at 240).
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[¶6] The North Dakota Commission on Legal Counsel for Indigents has
established eligibility guidelines for indigent defense services. See N.D.C.C. §
54-61-01(1) (establishing the commission on legal counsel for indigents);
N.D.C.C. § 54-61-02(1)(a)(1) (providing authority for commission to develop
indigent defense services eligibility standards). Under the guidelines,
“Applicants with income resources in excess of 125% of the federal poverty
level, as indicated on the current version of the ‘Income Guidelines,’ will
generally not qualify for indigent defense services.” N.D. Comm’n on Legal
Counsel for Indigents, Guidelines to Determine Eligibility for Indigent Defense
Services 8 (revised March 20, 2014). Under the 2018 “Income Guidelines,” a
defendant living in a two-person household was eligible for indigent defense
services when his or her annual gross household income was $20,575 or less,
his or her monthly gross household income was $1,715 or less, or his or her
weekly gross household income was $396 or less. N.D. Comm’n on Legal
Counsel for Indigents, Income Guidelines 2018 (2018). Under the 2019 “Income
Guidelines,” a defendant living in a two-person household was eligible for
indigent defense services when his or her annual gross household income was
$21,138 or less, his or her monthly gross household income was $1,762 or less,
or his or her weekly gross household income was $407 or less. N.D. Comm’n on
Legal Counsel for Indigents, Income Guidelines 2019 (2019). Household income
includes the income of the defendant applying for indigent defense services and
the applicant’s spouse. See Guidelines to Determine Eligibility for Indigent
Defense Services, supra, at 9-10. “If the applicant has indicated that the
spouse’s income and assets should not be considered for some specified reason,
the spouse should not be included in the members of the household.” Id. at 10.
[¶7] On his application for indigent defense services, Ovind listed his wife’s
income as approximately $2,956.80 per month. This was over $1,000 per month
more than the maximum monthly income to be eligible for appointed counsel
under both the 2018 and 2019 guidelines. Ovind proclaimed his wife’s income
should not be considered because it goes entirely towards living expenses.
However, given Ovind’s household income is substantially more than the
maximum to be eligible under the guidelines, Ovind failed to carry his burden
of proving his indigency. After reviewing the record, we conclude the district
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court did not act arbitrarily, unconscionably, or unreasonably and properly
declined to approve Ovind’s applications for indigent defense services.
III
[¶8] Ovind argues his convictions should be reversed because of prosecutorial
misconduct. “[I]f the record on appeal does not allow a meaningful and
intelligent review of the trial court’s alleged error, we will decline to review it.”
State v. Gray, 2017 ND 108, ¶ 16, 893 N.W.2d 484 (citing Klose v. State, 2005
ND 192, ¶ 13, 705 N.W.2d 809; State v. Hilgers, 2004 ND 160, ¶ 19, 685 N.W.2d
109). Ovind failed to file a trial transcript on appeal. Without a trial transcript,
it is impossible for this Court to conduct a meaningful and intelligent review
into Ovind’s allegations, and we decline to do so. Id.; State v. Palacio, 2017 ND
273, ¶ 1, 904 N.W.2d 41 (per curiam).
Outcome: The criminal judgment is affirmed.
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