Printable Format22-4503. Entitlement of defendant to counsel; appointment of counsel, when; access to defendant; duty of appointed counsel. (a) A defendant charged by the state of Kansas in a complaint, information or indictment with any felony is entitled to have the assistance of counsel at every stage of the proceedings against such defendant and a defendant in an extradition proceeding, or a habeas corpus proceeding pursuant to K.S.A. 22-2710, and amendments thereto, is entitled to have assistance of counsel at such proceeding. A person subject to an order or commitment pursuant to K.S.A. 22-3428 or K.S.A. 59-2965, and amendments thereto, shall be entitled to the assistance of counsel at every stage of a habeas corpus proceeding brought by such person and the provisions of this section relating to defendants shall be applicable to such persons.
(b) If such a defendant appears before any court without counsel to assist and conduct the defendant's defense, it shall be the duty of the court to inform the defendant that such defendant is entitled to counsel and that counsel will be appointed to represent the defendant if the defendant is not financially able to employ an attorney. The court shall give the defendant an opportunity to employ counsel of the defendant's own choosing if the defendant states the defendant is able to do so. If the defendant asks to consult with counsel of the defendant's own choosing, the defendant shall be given a reasonable opportunity to do so.
(c) If it is determined that the defendant is not able to employ counsel, as provided in K.S.A. 22-4504, and amendments thereto, the court shall appoint an attorney from the panel for indigents' defense services or otherwise in accordance with the applicable system for providing legal defense services for indigent persons prescribed by the state board of indigents' defense services for the county or judicial district. A record of the proceedings provided for by this section shall be entered in the journal, and any order binding the defendant for trial or directing further detention upon the charge and the journal entry of trial and judgment shall recite the substance of such proceedings.
(d) Counsel employed by or appointed for the defendant shall have free access to the defendant at all times for the purpose of conferring with the defendant relative to the charge, for advising the defendant respecting the defendant's plea and for the preparation of the defense, if a defense is to be made. It is the duty of an attorney appointed by the court to represent a defendant, without charge to such defendant, to inform the defendant fully of the crime charged against the defendant and the penalty therefor, and in all respects fully and fairly to represent the defendant in the action.
(e) If, after the attorney's appointment, the attorney learns that the defendant has funds or other resources sufficient to enable the defendant to employ counsel, the attorney shall report these facts to the court and ask permission to withdraw from the case or to be permitted to accept compensation for services.
History: L. 1969, ch. 291, § 3; L. 1979, ch. 100, § 1; L. 1979, ch. 97, § 3; L. 1982, ch. 142, § 13; L. 1996, ch. 167, § 46; April 18.
Cross References to Related Sections:
Application fee, see 22-4529.
Law Review and Bar Journal References:
No specific rules have been set up to insure competent counsel is assigned in each case, Gerald L. Goodell, 39 J.B.A.K. 339 (1970).
No provision for appointed counsel in misdemeanor cases, Lawrence J. Beilman, 9 W.L.J. 469, 473 (1970).
"Constitutional Law—Reimbursement of Costs by Indigent Defendants for Court-Appointed Counsel," William R. Vincent, 10 W.L.J. 113, 115 (1970).
"A Comment on Kansas' New Drunk Driving Law," Joseph Brian Cox and Donald G. Strole, 51 J.K.B.A. 230, 238 (1982).
Criminal Procedure Survey, 56 K.L.R. 782 (2008).
Attorney General's Opinions:
Aid to indigent defendants; payment for attorney services under act; compensation from other sources. 83-170.
Aid to indigent defendants; entitlement to compensation. 84-119.
Habeas corpus proceeding challenging conditions of confinement; right of defendant to counsel; compensation of counsel. 97-71.
CASE ANNOTATIONS
1. Cited; statute requiring right to counsel in preliminary proceedings not retroactive. Delano v. State, 209 Kan. 670, 674, 498 P.2d 18.
2. Counsel not present at preliminary hearing; retrospective effect denied; no error absent showing of prejudice. Johnson v. State, 210 Kan. 498, 499, 502 P.2d 838.
3. Assistance of counsel at preliminary hearing not required under former rule in absence of showing of prejudice. Reid v. State, 213 Kan. 298, 300, 515 P.2d 1040.
4. Applied; prosecution for aggravated kidnapping; defendant not denied assistance of counsel. State v. Dolack, 216 Kan. 622, 634, 636, 533 P.2d 1282.
5. Absent waiver defendant is entitled to counsel after prosecution commenced upon filing warrant. State v. McCorgary, 218 Kan. 358, 361, 543 P.2d 952.
6. Construed; right to appointment of counsel dependent upon financial inability to employ counsel; theft conviction upheld. State v. Timmons, 218 Kan. 741, 747, 748, 545 P.2d 358.
7. Motion for new trial is stage requiring appointment of counsel hereunder. State v. Andrews, 228 Kan. 368, 373, 375, 376, 614 P.2d 447.
8. Cited; board review and denial of compensation claims for appointed attorneys (K.S.A. 22-4522) not violation of separation of powers doctrine. Clark v. Ivy, 240 Kan. 195, 203, 204, 727 P.2d 493 (1986).
9. Present system for appointment of legal counsel, as administered, violates U.S. and Kansas constitutions. State ex rel. Stephan v. Smith 242 Kan. 336, 342, 377, 383, 747 P.2d 816 (1987).
10. Cited; legal obligation of county to provide counsel for indigent defendants charged with misdemeanors, hourly rate allowed examined. Board of Osage County Comm'rs v. Burns, 242 Kan. 544, 548, 747 P.2d 1338 (1988).
11. Defendant's right to counsel at hearing on motion to modify sentence (K.S.A. 21-4603(3)) determined. State v. Pierce, 246 Kan. 183, 185, 787 P.2d 1189 (1990).
12. Defendant's pro se motion for new trial viewed as post-conviction motion preceding appeal; appointment of counsel neither constitutionally nor statutorily required. State v. Kingsley, 252 Kan. 761, 766, 851 P.2d 370 (1993).
13. Section cited; defendant has a statutory right to counsel to seek Kansas supreme court review in criminal proceeding. Kargus v. State, 284 Kan. 625, 631, 632, 633, 640, 641, 162 P.3d 818 (2007).
14. Defendant's rights to effective assistance of counsel in direct appeals and petition for review discussed. Kargus v. State, 284 Kan. 908, 169 P.3d 307 (2007).
15. Section specifies defendant in an extradition proceeding is entitled to assistance of counsel at such proceeding. State v. Patton, 285 Kan. 779, 789, 790, 176 P.3d 151 (2008).
16. Application fee under K.S.A. 22-4529 is to be assessed at time defendant applies for court-appointed counsel. State v. Hawkins, 285 Kan. 842, 851, 176 P.3d 174 (2008).
17. Appointment of counsel is automatic upon finding of indigency. Montejo v. Louisiana, 129 S. Ct. 2079 (2009).
18. Petitioner in 1501 proceedings not entitled to appointment of counsel under facts of case. Merryfield v. Kansas Dept. of SRS, 44 Kan. App. 2d 324, 236 P.3d 528 (2010).
19. Miranda waiver form is not a valid waiver of statutory right to counsel under the facts of case. State v. Lawson, 296 Kan. 1084, 297 P.3d 1164 (2013).
20. Jury may view crime scene without presence of a criminal defendant's counsel. State v. Carr, 300 Kan. 1, 223, 331 P.3d 544 (2014).
21. Defendant does not have 6 th amendment right to have counsel present during a psychiatric evaluation. State v. Mattox, 305 Kan. 1015, 1053-55, 390 P.3d 514 (2017).