Commonwealth v. Fico, et al.

Supreme Judicial Court, July 13, 2012

The income and assets of a defendant’s girlfriend, the girlfriend’s mother, or the defendant’s own mother, were he to live with them, should be considered in assessing the defendant’s indigency status. 

Commonwealth v. Mortimer, et al.

Supreme Judicial Court, July 13, 2012

An Individual Retirement Account is considered a liquid asset available to the defendant within the meaning of S.J.C. Rule 3:10 and may be properly included in the assessment of his ability to pay for his representation, at least up to the net amount available to him after accounting for any early withdrawal penalties and taxes.

Commonwealth v. Porter

Supreme Judicial Court, July 13, 2012

A defendant seeking appointment of counsel at public expense bears the burden of proving his indigency by a preponderance of the evidence. 

It is not a violation of any State or Federal Constitution guarantee to consider a spouse’s income when making a determination of indigency.


In a series of opinions the Supreme Judicial Court addressed the issue of court appointed counsel for a defendant and what assets may be considered when determining indigency.

The right to counsel is a fundamental right protected by both the Sixth Amendment and Article 12.  If an accused lacks the financial means to hire counsel, the right necessarily encompasses a duty on the court to appoint counsel for the accused.  Gideon v. Wainwright, 372 U.S. 335 (1963).  Indigency determinations are governed by G.L. c. 211D and S.J.C. Rule 3:10.

Burden of Proof:

Rule 3:10 does not place the burden of proving indigency on any party.  After reviewing numerous other state and federal court decisions, the SJC ruled in Porter that the defendant does in fact bear the burden of proving indigency by a preponderance of the evidence when seeking appointment of counsel.

Available Funds:

Spousal Assets and Income:

Rule 3:10, §1 (b)(ii) allows the income of a defendant’s spouse to be attributed to the defendant if that spouse resides with the defendant and “contributes substantially toward the household’s basic living expenses.”   The defendant, Porter, raised a constitutional challenge to the rule claiming that her husband is under no legal obligation to pay. 

Using the rational connection test, the Court disagreed that rule 3:10, §1 (b)(ii) violates any guarantee of the Federal or State Constitution. 

Parental assets and income.

The defendant, Fico, challenged the constitutionality of rule 3:10, § 1(b)(iii), which allows certain assets and income of his household to be attributed to him in making the determination of indigency, because it creates an obligation on a third party to pay legal expenses for another and provides no mechanism for enforcement.  Applying the rational connection test specifically to the “adult child” portion of the statue the Court found that “a rational connection exists between the status of a parent supporting a dependent adult child and that same parent's willingness to extend that support to pay for legal counsel, in whole or in part, for his or her dependent adult child should the circumstances present.” 

The Court concluded that rule 3:10, §1 (b)(iii) violates any guarantee of the Federal or State Constitution. 

Individual Retirement Accounts (IRA):

The defendant, Mortimer, argues that his IRA should be excluded from his indigency calculation because the funds do not fall within the definition of “available funds.”   The definition of “available funds” in S.J.C. Rule 3:10, § 1 (b) (i) includes both “disposable net monthly income” and “liquid assets.”  After a thorough analysis of the terms, the Court concluded that “a judge applying S.J.C. Rule 3:10 may properly consider funds held in IRAs to be available funds in the indigency determination, at least absent evidence demonstrating that a Federal statute or federally regulated retirement plan structure makes such funds in a particular case completely unavailable to a defendant as a matter of law.”