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Trial court’s denial of counsel affirmed due to “sketchy” record

State v. Elbe, 2016AP2012-2013, 1/26/17, District 4 (1-judge opinion; ineligible for publication); case activity (including briefs)

The Elbes were charged with disorderly conduct back in 1996. They requested the appointment of counsel, but the trial court found that they were not indigent.  This caused them to plead no contest. Twenty years later they moved to vacate their convictions arguing that the 1996 decision violated their 6th Amendment right to counsel. They lost in the trial court and in the court of appeals.

The reason they lost is that the record regarding their indigency, presented to the trial court back in 1996, was “sketchy.” The court that denied their motion to vacate in 2016 did not have a transcript of the 1996 hearing. It had only (1) the handwritten minute sheets from the 1996 hearing, (2) an undated, unsigned page of notes regarding the cost of gasoline, rent and so forth that was submitted with the Elbes’ 1996 motion for the appointment of counsel, and (3) a public defender affidavit averring that the Elbes’s assets slightly exceeded the eligibility criteria for a misdemeanor case. ¶¶8-9.

Due to the sparse record and the Elbes’s failure to develop their arguments, they failed to convince the court of appeals that the trial court erroneously exercised its discretion in denying their request for counsel in 1996 and their motion to vacate in 2016. ¶¶10-12.


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