State v. Scott Sheltra

ENTRY ORDER
SUPREME COURT DOCKET NO. 2020-303
DECEMBER TERM, 2020
State of Vermont v. Scott Sheltra* } APPEALED FROM:
}
} Superior Court, Franklin Unit,
} Criminal Division
}
} DOCKET NO. 1353-11-20 Frcr
In the above-entitled cause, the Clerk will enter:
Defendant Scott Sheltra appeals the trial court’s denial of his application for public
defender services. We conclude that the trial court improperly considered only defendant’s ability
to pay for public defender services in determining whether he was a “needy person” under 13
V.S.A. § 5231. We accordingly remand for the trial court to conduct a hearing and make additional
findings as to defendant’s need based on the factors outlined in § 5236(b).
The record indicates the following. On November 16, 2020, defendant was arraigned on
one count of operating a motor vehicle under the influence of alcohol, in violation of 23 V.S.A.
§ 1201, and one count of operating a motor vehicle with a suspended license, in violation of 23
V.S.A. § 674(b). That same day, defendant filed an application for public defender services. On
his application, defendant reported a monthly income of $3360, which amounts to just over
$40,000 annually, and $2419 in monthly expenses. Based upon this information, the trial court
denied defendant’s request for public-defender services, concluding that defendant was not a needy
person because, based on the payment scheme outlined in 13 V.S.A. § 5236, he would be required
to reimburse the state for the entire cost of any public-defender services that were provided.
Defendant appealed.
13 V.S.A. § 5236(c) provides that an applicant for public-defender services may appeal a
determination of need to a single Justice of the Supreme Court. “We typically review a trial court’s
decision on whether an applicant qualifies for public defender services for abuse of discretion.”
State v. Kittredge, 2018 VT 6, ¶ 4, 206 Vt. 661, 182 A.3d 63 (mem.). “A showing of an abuse of
discretion requires establishing the court either totally withheld its discretion or exercised it on
clearly untenable or unreasonable grounds.” Brown v. State, 2018 VT 1, ¶ 38, 206 Vt. 394, 182
A.3d 597.
Here, the trial court abused its discretion because its decision to deny public-defender
services was based on an incorrect understanding of the law. See Vt. Nat’l Tel. Co. v. Dep’t of
Taxes, 2020 VT 83, ¶ 61, __ Vt. __, __ A.3d __ (recognizing that “an abuse of discretion occurs
when a decision is based on an incorrect intepretation of the law”). An applicant is entitled to
representation by a public defender if he or she is a “needy person” charged with a serious crime.
13 V.S.A. § 5231(a); State v. Higginbotham, 174 Vt. 640, 641, 816 A.2d 547, 549 (2002) (mem.).
“The public defender statute creates a three-step procedure for consideration of the applicant’s
financial circumstances.” State v. Morgan, 173 Vt. 533, 533, 789 A.2d 928, 929 (2001) (mem.).
First, a court must consider whether an applicant is “needy,” which is defined as a person
who “is financially unable, without undue hardship, to provide for the full payment of an attorney
and all other necessary expenses of representation or who is otherwise unable to employ an

2
attorney.” 13 V.S.A. § 5201(3); A.O. 4, § 5. In making this determination, “the court may
consider such factors as income, property owned, outstanding obligations, and the number and
ages of dependents.” 13 V.S.A. § 5236(b). An applicant will be presumed needy if they receive
any kind of welfare that “constitutes a major portion of subsistence” or if their income is at or
below poverty income guidelines for nonfarm families. A.O. 4, § 5(c). “In cases in which an
individual does not qualify for either presumption, a judicial officer must still make a
determination as to whether the individual qualifies as a needy person.” Kittredge, 2018 VT 6,
¶ 8. “If the applicant is determined to be needy and is charged with a serious offense, then the
court will assign counsel.” Morgan, 173 Vt. at 533, 789 A.2d at 929.
If a court determines an applicant is needy, it then considers “ability to pay for all or part
of the defender services.” Id. Ability to pay is based upon the federal poverty guidelines. 13
V.S.A. § 5238(b). For example, applicants with incomes 125% above the guidelines are only
required to reimburse the state for a part of the average cost of public-defender services, 25%.
Applicants with incomes over 200% above the guidelines, however, are required to reimburse the
state for the entire cost. Id.; Higginbotham, 174 Vt. at 641, 816 A.2d at 549-50. Finally, “[i]n the
third step, the court designates the repayment amount as a co-payment, which must be paid prior
to the assignment of counsel.” Morgan, 173 Vt. at 534, 789 A.2d at 929.
Here, the trial court improperly considered defendant’s ability to pay in determining
whether he was a needy person. It concluded that defendant was not needy because his annual
income of $40,000 was 200% over the federal poverty guidelines, and he would therefore be
required to reimburse the state for the entire cost of defender services. See Annual Update of the
HHS Poverty Guidelines, 85 Fed. Reg. 3060, 3060 (Jan. 17, 2020) (listing the poverty guideline
for a single-family household at $12,760). Under the public-defender statutory scheme, however,
access to public-defender services is based on need, not on the applicant’s ability to pay. Ability
to pay is only relevant if a court first concludes that an applicant is needy, which is not determined
by reference to income alone. 13 V.S.A. § 5236(b) (explaining that in making the needy-person
determination, “the court may consider such factors as income, property owned, outstanding
obligations, and the number and ages of dependents”). The statutory scheme clearly indicates that
an applicant with an income 200% over the federal poverty guidelines, and who is required to
reimburse the state for the entire cost of the defense, can nevertheless qualify as a needy person
under § 5236.
In sum, the trial court improperly considered defendant’s ability to pay in determining
need. The matter is accordingly remanded for the trial court to conduct a hearing and make
findings as to whether defendant is a needy person based on the factors outlined in § 5236(b).
Although income is a relevant factor in considering need, it is not conclusive.
Remanded for the trial court to conduct a hearing and make findings as to whether
defendant is a needy person.
FOR THE COURT:
Karen R. Carroll, Associate Justice