Adm 1000 Indigent Defense

CHAPTER Adm 1000 RECOUPMENT OF EXPENDITURES FOR INDIGENT DEFENSE

Statutory Authority: RSA 604-A: 10, IV

REVISION NOTE:

Document #8697, effective 8-3-06, adopted Adm 1000 relative to recoupment of expenditures for indigent defense. Document #8697 made extensive changes to the wording, format, and numbering in the former Adm 1000 entitled “Payment of Certain Indigent Defense Expenditures”, which had expired 6-29-05. Document #8697 therefore replaces all prior filings affecting Adm 1000. The filings of the Department of Administrative Services affecting the former Adm 1000 include the following documents:

#4496, INTERIM, eff 10-3-88

#4565, eff 1-21-89

#4642, INTERIM, eff 7-3-89

#4689, eff 10-25-89

#4935, eff 9-20-90

#5175, eff 7-10-91

#5599, eff 4-1-93

#6067, INTERIM, eff 7-27-95, EXPIRED 11-24-95

#6421, eff 1-4-97

#8246, INTERIM, eff 12-31-04, EXPIRED 6-29-05

PART Adm 1001 PURPOSE AND APPLICABILITY

Adm 1001.01 Purpose. The purpose of these rules is to implement the responsibility of the department of administrative services relative to repayment of sums expended by the state for indigent defense services and defense expenses by:

(a) For repayment orders issued prior to July 1, 2020, establishing requirements and procedures for:

(1) Determining the installment payments and schedules for repayment; and

(2) Carrying out financial and credit investigations in connection with the determination of such installment payments and schedules; and

(b) For repayment orders issued or modified on or after July 1, 2020, establishing requirements and procedures for collection of payments, as ordered by the court.

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #10728, eff 11-25-14; ss by #13050, eff 7-1-20

Adm 1001.02 Applicability. This chapter shall apply to:

(a) Adults charged with a crime and juveniles charged with delinquency who apply for or are appointed counsel or are allowed State payment for other defense services on the basis of indigence; and

(b) Persons liable under RSA 604-A: 2-a for the support of such juveniles charged with delinquency who apply for or are appointed counsel or are allowed State payment for other defense services on the basis of indigence.

Source. #13050, eff 7-1-20

PART Adm 1002 DEFINITIONS

Adm 1002.01 "Appointed counsel" means defense counsel appointed to represent a defendant at the expense of the State of New Hampshire.

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #9149, eff 5-1-08; ss by #10728, eff 11-25-14; ss by #13050, eff 7-1-20

Adm 1002.02 "Conviction" means a final judgment on a verdict, finding, or plea of guilty against a defendant charged with a crime. The term includes “convicted”. The term also includes a finding of delinquency against a juvenile charged with delinquency.

Source. #13050, eff 7-1-20

Adm 1002.03 "Defendant" means an adult charged with a crime, a juvenile charged with delinquency or, where the context requires such meaning, a person liable under RSA 604-A:2-a for the support of a juvenile charged with delinquency.

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #9149, eff 5-1-08 (from Adm 1002.02); ss by #10728, eff 11-25-14; ss by #13050, eff 7-1-20 (formerly Adm 1002.02)

Adm 1002.04 "Defense services" means the services of defense counsel, investigative services, the services of experts and other services necessary for an adequate defense against criminal charges or charges of juvenile delinquency.

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #9149, eff 5-1-08 (from Adm 1002.03); ss by #10728, eff 11-25-14; ss by #13050, eff 7-1-20 (formerly Adm 1002.03)

Adm 1002.05 "Expenses" means the expenses of service of process to compel the attendance of witnesses and other expenses necessary for an adequate defense against criminal charges or charges of juvenile delinquency.

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #9149, eff 5-1-08 (from Adm 1002.04); ss by #10728, eff 11-25-14; ss by 13050, eff 7-1-20 (formerly Adm 1002.04)

Adm 1002.06 "Financial statement” means a statement of facts, asserted under oath pursuant to RSA 604-A:2, I, by a defendant regarding the defendant’s income, property, assets, and other financial information necessary to determine a defendant’s eligibility for and ability to pay for appointed counsel. The term includes OCC Form 4, designated by the OCC pursuant to RSA 604-A:2, I, or a court-produced form requiring submission of the same information.

Source. #13050, eff 7-1-20

Adm 1002.07 "Initial payment" means the sum which the defendant is ordered by the presiding judge to pay the state as the first installment on the defendant's minimum liability for legal expenses.

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #9149, eff 5-1-08 (from Adm 1002.06); ss by #10728, eff 11-25-14; ss by #13050, eff 7-1-20 (formerly Adm 1002.05)

Adm 1002.08 "Minimum liability for legal expenses" means the sum of money ordered by the presiding judge to be repaid the state by a defendant for whom counsel has been appointed, exclusive of any additional liability incurred as a result of orders for state payment of defense services other than counsel and for state payment of expenses.

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #9149, eff 5-1-08 (from Adm 1002.05); ss by #10728, eff 11-25-14; ss by #13050, eff 7-1-20 (formerly Adm 1002.06)

Adm 1002.09 "Office of cost containment (OCC)" means the unit of cost containment established by RSA 21-I:7-b.

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #9149, eff 5-1-08 (from Adm 1002.06); ss by #10728, eff 11-25-14; ss by #13050, eff 7-1-20 (formerly Adm 1002.07)

Adm 1002.10 "Presiding judge" means a judge of a New Hampshire court with the authority to order state payment of defense services or expenses.

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #9149, eff 5-1-08 (from Adm 1002.07); ss by #10728, eff 11-25-14; ss by #13050, eff 7-1-20 (formerly Adm 1002.08)

PART Adm 1003 APPLICATION FOR APPOINTED COUNSEL OR STATE PAYMENT FOR OTHER DEFENSE SERVICES OR EXPENSES

Adm 1003.01 Application.

(a) A defendant applying for appointed counsel or state payment for other defense services as defined in Adm 1002.02 or state payment of expenses as defined in Adm 1002.03, or applying for an adjustment to a repayment order, in accordance with Adm 1005.03, shall:

(1) Submit to the court the information specified in Adm 1003.02 on a financial statement; and

(2) Complete and sign the financial statement as specified in Adm 1003.03.

(b) In the case of a juvenile charged with delinquency, a financial statement shall be completed by court personnel with the assistance of the juvenile so charged or a person liable for the support of the juvenile, as applicable, by providing the information specified in Adm 1003.02(a).

(c) A defendant seeking state payment of defense services other than appointed counsel or state payment of expenses shall make application to the presiding judge by whatever procedure the court requires.

(d) Execution of a financial statement shall not be required for appointment of counsel pursuant to RSA 604-A:2, IV (b).

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #10728, eff 11-25-14; ss by #13050, eff 7-1-20

Adm 1003.02 Information Required on a Financial Statement. A financial statement shall contain the following information about the defendant:

(a) His or her:

(1) Name;

(2) Address;

(3) Telephone number;

(4) Date of birth; and

(5) Age;

(b) His or her marital status, whether:

(1) Single;

(2) Married;

(3) Divorced;

(4) Separated; or

(5) Widowed;

(1) Their names;

(2) Their addresses if different from that of the defendant;

(3) Their relationship to the defendant; and

(4) Their ages;

(d) For both the defendant and a spouse of the defendant, the amounts of the following kinds of funds available to each of them, individually:

(1) Cash on hand;

(2) Money in checking accounts;

(3) Money in savings accounts;

(4) Funds in stocks, bonds, trusts, certificates of deposit and similar investments; and

(5) The total sum of the amounts provided for (1) through (4), above;

(e) For both the defendant and a spouse of the defendant, the amounts of the following received by each of them, individually, weekly, and monthly:

(1) Take home pay in the form of wages or salary;

(2) Alimony or maintenance received;

(3) Child support received; and

(4) The total sum of the amounts provided for (1) through (3), above;

(f) For the defendant and a spouse of the defendant, the following employment information:

(1) Name of employer;

(2) Address of employer; and

(3) Whether employment is full time, part time or seasonal;

(g) The defendant's monthly housing costs in the form of:

(1) Monthly rent or mortgage;

(2) Utilities; and

(3) The total sum of the costs provided for (1) and (2), above;

(h) The defendant's monthly loan payments, including the following information about such payments:

(1) The payee(s);

(2) The purpose(s) of the loan(s) being repaid;

(3) The balance(s) due on the loan(s);

(4) The amount(s) of the monthly payment(s); and

(5) The total of all monthly loan payments;

(i) Additional monthly payments, such as alimony, child care and child support, including:

(1) The payee(s);

(2) The purpose(s) of the payment(s);

(3) The sum(s) still owed;

(4) The amount(s) of the monthly payment(s); and

(5) The total of all such monthly payments; and

(j) With respect to the defendant's ownership of real estate and personal property:

(1) Whether the defendant owns a house or other real estate, and if so:

a. Identification of the real estate;

b. The market value of such real estate;

c. The identity of the mortgage holder on such real estate, if applicable; and

d. The amount of the mortgage on such real estate, if applicable; and

(2) Whether the defendant has, within the last 6 months, sold or transferred real estate or personal property worth $200.00 or more, and if so:

a. Identification of such real estate or property;

b. The identity of the transferee of such real estate or property;

c. The value of such real estate or property; and

d. The amount received for such real estate or property.

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #9149, eff 5-1-08; ss by #10728, eff 11-25-14; ss by #13050, eff 7-1-20

Adm 1003.03 Defendants Representations on Application for State Payment of Defense Services or Expenses. Completion and signing of the financial statement shall be a defendant's representation that he or she:

(a) Has read and understands the application;

(b) Swears that the information he or she has provided is:

(1) True to the best of his or her knowledge;

(2) Given to induce appointment of counsel because he or she is currently unable to retain private counsel; and

(3) Given under the penalty of perjury, the punishment for which is imprisonment for not more than 7 years;

(d) Understands that:

(1) Subject to Adm 1005, if the court appoints an attorney to represent him or her he or she might be liable for all legal fees and any other court-approved costs of defense;

(2) Subject to Adm 1005, the court will order him or her to repay the state according to his or her ability as determined by the court or the office of cost containment, if so ordered by the court;

(3) He or she shall contact the office of cost containment within 5 days after a repayment order is issued to confirm his or her mailing address;

(4) If he or she does not agree with the court’s eligibility findings or decisions about his or her ability to pay, the defendant may file a motion to reconsider with the court, but shall prove to the court that any claimed shortage of funds is total or permanent or future employment is unlikely; and

(5) He or she shall notify the office of cost containment and the court of every change of address while still owing the state for the cost of representation; and

(e) Subject to Adm 1005, authorizes the court or the office of cost containment, if so ordered by the court, to obtain any and all information with regard to his or her employment and financial condition from any government agency, bank creditor or employer.

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #10728, eff 11-25-14; ss by #13050, eff 7-1-20

Adm 1003.04 Defendant's Obligation to Review Financial Statement. If the financial statement has been prepared by or with the assistance of court staff the defendant shall, before it is presented to the presiding judge to be signed to order appointment of counsel or other defense services or expenses, review all information contained therein and either confirm the accuracy of that information or make any necessary corrections.

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #10728, eff 11-25-14; ss by #13050, eff 7-1-20

Adm 1003.05 Defendant's Obligation to Maintain Contact with the Court and the Office of Cost Containment. A defendant for whom counsel has been appointed and for whom a repayment order has been issued, shall update his or her address and phone number with the clerk of the court and the office of cost containment every time there is a change of address or phone number during the period in which the defendant still owes the state for the cost of counsel or other defense services or expenses.

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #10728, eff 11-25-14; ss by #13050, eff 7-1-20

PART Adm 1004 ELIGIBILITY FOR APPOINTED COUNSEL AND STATE PAYMENT FOR OTHER DEFENSE SERVICES AND EXPENSES

Adm 1004.01 Determination of Ineligibility.

(a) Unless otherwise ordered by the presiding judge, a defendant shall be ineligible for state payment of defense services and expenses on the basis of the defendant's ability to borrow funds, as further set forth in (b) below.

(b) Unless otherwise ordered by the presiding judge, the defendant shall be deemed able to borrow funds if the net value of the defendant's real estate exceeds the value for the most serious crime or delinquency charged, as set forth in table 1004.1.

Table 1004.1

Crime or Delinquency With Which the Defendant is Charged	Net Value of Defendant's Real Estate
Homicide	$40,000
Supreme Court appeal	$20,000
Aggravated felonious sexual assault; felonious sexual assault; first degree assault	$20,000
Negligent homicide	$20,000
Felony	$20,000
Misdemeanor appeal	$20,000
Misdemeanor, jury trial	$10,000
Misdemeanor	$10,000
Juvenile	$10,000
Other	$10,000

(c) Unless otherwise ordered by the presiding judge, a defendant shall be ineligible for state payment of defense services and expenses if the funds available to the defendant exceed the value permitted for the most serious crime or delinquency charged, as set forth in table 1004.2.

Table 1004.2

Crime or Delinquency With Which the Defendant is Charged	Funds Available to Defendant
Homicide	$10,000 or more
Supreme Court appeal	$4,000 or more
Aggravated felonious sexual assault; felonious sexual assault; first degree assault	$4,000 or more
Negligent homicide	$4,000 or more
Felony	$4,000 or more
Misdemeanor appeal	$4,000 or more
Misdemeanor, jury trial	$1,500 or more
Misdemeanor	$1,500 or more
Juvenile	$2,000 or more
Other	$2,000 or more

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #10728, eff 11-25-14; ss by #13050, eff 7-1-20

Adm 1004.02 Eligible Defendants. A defendant not ineligible pursuant to Adm 1004.01(b) or Adm 1004.01(c) shall be eligible for appointed counsel and for state payment of other defense services and expenses when they are ordered by the presiding judge.

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #10728, eff 11-25-14; ss by #13050, eff 7-1-20

PART Adm 1005 DEFENDANT'S REPAYMENT OBLIGATION

Adm 1005.01 Repayment of the Cost of Appointed Counsel.

(a) An adult defendant for whom counsel has been appointed and for whom a repayment order has been issued by the court on or before June 30, 2020, shall reimburse the state, as specified in (d) and (e), below, through the office of cost containment the minimum liability for legal expenses established by presiding judge's order, provided that the sum ordered does not exceed the actual cost to the state of the defendant's representation together with any service charge made pursuant to Adm 1005.04(a)(2).

(b) On or after July 1, 2020, a defendant for whom counsel has been appointed and who has been convicted, shall reimburse the state, as specified by the court, through the office of cost containment or, in the case of a defendant placed on probation or sentenced to a period of conditional discharge, through the department of corrections, the minimum liability for legal expenses established by presiding judge's order, provided that the sum ordered does not exceed the actual cost to the state of the defendant's representation together with any service charge made pursuant to Adm 1005.04(a)(2).

(c) Pursuant to RSA 604-A:9, I-a, the liability to reimburse the state for the cost of state-paid defense services and expenses imposed on any person obligated under RSA 604-A:2-a to support a juvenile defendant shall cease when the juvenile reaches the age of majority, except when the juvenile was certified and tried as an adult.

(d) For repayment orders issued on or before June 30, 2020, a defendant shall meet his or her minimum liability for legal expenses by:

(1) Paying to the office of cost containment an initial payment and monthly installments totaling an amount equal to one half of the sum reached by performing the calculation set forth in (e) below, rounded down to the nearest $5.00 value; or

(2) Making payments in accordance with any adjustments made to the payment schedule or the amount of the payments pursuant to Adm 1005.03.

(e) The initial payment and the installment payments to be made pursuant to (d)(1) above shall be calculated as follows:

(1) Add the amount provided by the defendant in response to Adm 1003.02(d)(5) to the amount provided by the defendant in response to Adm 1003.02(e)(4);

(2) Then add together:

a. The amount supplied by the defendant in response to Adm 1003.02(g)(3);

b. The amount supplied by the defendant in response to Adm 1003.02(h)(5);

c. The amount supplied by the defendant in response to Adm 1003.02(i)(5);

d. As an allowed living expense, the amount of $250.00; and

e. The product of the number of dependents listed by the defendant in response to Adm 1003.02(c) multiplied by $100.00; and

(3) Finally, subtract the sum resulting from the addition described in (2) above from the sum resulting from the addition described in (1) above.

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #10728, eff 11-25-14; ss by #13050, eff 7-1-20

Adm 1005.02 Method of Repayment of the Cost of Appointed Counsel.

(a) A defendant shall, within 5 days after a repayment order is issued:

(1) Make the initial payment to the office of cost containment or the department of corrections, as specified in Adm 1005.01; and

(2) Contact the office of cost containment to confirm his or her mailing address.

(b) After making the initial payment the defendant shall make installment payments monthly, or as otherwise ordered by the court, subject to Adm 1005.03.

(c) A defendant shall contact the office of cost containment whenever requested to do so by letter or phone call from the office of cost containment.

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #10728, eff 11-25-14; ss by #13050, eff 7-1-20

Adm 1005.03 Adjustments in Payment Amounts and Payment Schedule.

(a) At any time after a repayment order is issued, a defendant subject to a repayment order may petition the court to establish an adjustment in the payment or payment schedule, or to be relieved from the repayment obligation, if the defendant’s circumstances have changed since the date of the repayment order.

(b) Adjustments in the amount of the installment payments or in the payment schedule shall be made by:

(1) The court, upon a finding by the court that the defendant is unable to comply with the terms of the repayment order or any previous modification thereof; or

(2) The office of cost containment, if so ordered by the court, in accordance with (e) below.

(c) A defendant seeking an adjustment in payments shall submit to the court or to the office of cost containment, as applicable, updated financial information as specified in Adm 1003.

(d) A defendant who is imprisoned shall not be required to make payments until the defendant is released from prison. A defendant who is assigned to work release, in accordance with Cor 411, shall not be considered imprisoned for purposes of this section.

(e) If authorized by the court, as specified in (b), above, the office of cost containment shall decrease the amount of the initial or installment payments due or adjust the payment schedule if the defendant is unable to pay the full amount or unable to make payments monthly for one of the following reasons:

(1) The defendant's expenses have increased since a prior financial statement was completed; or

(2) The defendant's income has decreased since a prior financial statement was completed.

(f) A defendant may increase the amount of installment payments or make them on an accelerated schedule.

(g) An adjustment in the amount or schedule of payments shall not decrease the minimum liability for legal expenses ordered by the presiding judge.

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #10728, eff 11-25-14; ss by #13050, eff 7-1-20

Adm 1005.04 Additional Liabilities of Defendant.

(a) To the minimum liability for legal expenses described in Adm 1005.01(a) shall be added:

(1) Any liability to repay the cost to the state for the provision of additional defense services and expenses established by judicial order; and

(2) Pursuant to RSA 604-A:9, I(f), a service charge of no more than 10 per cent of the total amount of counsel fees and expenses owed by a defendant under the circumstances described in (b) below.

(b) A defendant shall pay a service charge of no more than 10 per cent of the total amount of counsel fees and expenses owed the state when:

(1) The defendant has:

a. Expressly refused to make installment payments or to arrange for adjustments pursuant to Adm 1005.03; or

b. Has not made or has ceased making installment payments and has failed to contact the office of cost containment; and

(2) The office of cost containment has sent the defendant at least one letter indicating its intent to seek judicial enforcement of the repayment order and to impose a service charge, as specified in this section.

(1) Contact the office of cost containment to arrange to pay such liabilities; or

(2) Petition the court for an adjustment pursuant to Adm 1005.03; and:

a. Within 5 days of filing such petition, notify the office of cost containment that such petition has been filed; and

b. Within 5 days of the court’s order on such petition, submit the order to the office of cost containment.

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #10728, eff 11-25-14; ss by #13050, eff 7-1-20

Adm 1005.05 Investigations by the Office of Cost Containment.

(a) The office of cost containment shall investigate the financial circumstances of a defendant when:

(1) Authorized to do so by order of the court; and

(2) Necessary to confirm or disconfirm information provided by the defendant on an initial or updated financial statement.

(b) State agencies, including but not limited to the department of employment security and the department of corrections, shall assist the office of cost containment in its investigation when requested and permitted by law to do so.

(c) Private entities, including but not limited to a defendant's bank, employer and creditor, shall assist the office of cost containment in its investigation when requested and permitted by law to do so.

Source. (See Revision Note at chapter heading for Adm 1000) #8697, eff 8-3-06; ss by #10728, eff 11-25-14; ss by #13050, eff 7-1-20

APPENDIX

Rule	Specific State Statute the Rule Implements

Adm 1001	RSA 604-A:9; RSA 604-A:10, IV
Adm 1002	RSA 604-A:10, IV.
Adm 1003 (see also specific sections listed below)	RSA 604-A:2
Adm 1003.01(a) and (b)	RSA 604-A:2
Adm 1003.01(c)	RSA 604-A:6
Adm 1003.02	RSA 604-A:2; RSA 457-A:6
Adm 1003.02-Adm 1003.04	RSA 604-A:2
Adm 1003.05	RSA 604-A:9, I
Adm 1004	RSA 604-A:2, I; RSA 604-A:2-c & 2-d
Adm 1005 (see also specific sections listed below)	RSA 604-A:9, I
Adm 1005.01(a)	RSA 604-A:9, I-b
Adm 1005.01(b)	RSA 604-A:9, I-a
Adm 1005.01(c) and (d); Adm 1005.02	RSA 604-A:9, I, I-a and I-b
Adm 1005.02(a) & (b)	RSA 604-A:10, IV
Adm 1005.02(c)	RSA 604-A:9, I-c
Adm 1005.02(d) & (e)	RSA 604-A:10, IV
Adm 1005.02(f) & (g)	RSA 604-A:9, I-a; RSA 604-A:10, IV
Adm 1005.02(h)	RSA 604-A:10, IV
Adm 1005.03(a)-(c)	RSA 604-A:9, I and I-a; RSA 604-A:10, IV
Adm 1005.03(d)	RSA 604-A:9, V
Adm 1005.03(e)-(g)	RSA 604-A:9, I and I-a; RSA 604-A:10, IV
Adm 1005.04(a)(1)	RSA 604-A:6
Adm 1005.04(a)(2)-Adm 1005.04(c)	RSA 604-A:9, I and I-a
Adm 1005.05	RSA 604-A:10, IV