(1) At the time of first appearance on a municipal charge, if the defendant is in custody and the charged offense includes a possible sentence of incarceration, the court shall appoint counsel to represent the defendant for purposes of the initial appearance unless, after a full advisement pursuant to C.M.C.R. 210 and section 16-7-207, C.R.S., the defendant makes a knowing, intelligent, and voluntary waiver of his or her right to counsel.
If the defendant remains in custody, the appointment of counsel continues until thedefendant is released from custody. If the defendant is released from custody, he or she may apply for court-appointed counsel, and the court shall appoint counsel if the court determines that the defendant is indigent and the charged offense includes a possible sentence of incarceration.
(a) On and after January 1, 2020, each municipality shall provide independent indigent defense for each indigent defendant charged with a municipal code violation for which there is a possible sentence of incarceration. Independent indigent defense requires, at minimum, that a nonpartisan entity independent of the municipal court and municipal officials oversee or evaluate indigent defense counsel.
(b) (I) Because the office of alternate defense counsel created in section 21-2-101 is an independent system of indigent defense overseen by an independent commission, provision of indigent defense by lawyers evaluated or overseen by the office of alternate defense counsel satisfies the requirement described in subsection (3)(a) of this section.
(II) Because a legal aid clinic at any Colorado law school accredited by the American bar association is an independent system of indigent defense overseen by the dean of the law school with which it is affiliated, any provision or oversight of indigent defense through a legal aid clinic associated with any Colorado law school accredited by the American bar association satisfies the requirement described in subsection (3)(a) of this section.
(c) To satisfy the requirement described in subsection (3)(a) of this section, a municipality that contracts directly with one or more defense attorneys to provide counsel to indigent defendants shall ensure that:
The process to select indigent defense attorneys is transparent and based on merit;and
Each contracted indigent defense attorney is periodically evaluated by an independent entity for competency and independence. The municipality shall evaluate each newly hired defense attorney as soon as practicable but no later than one year after he or she is hired. Otherwise, the municipality shall evaluate each defense attorney at least every three years. An independent entity that evaluates defense attorneys pursuant to this subsection (3)(c)(II) shall provide evaluation results and any recommendations for corrective action in writing to the municipality. For the purpose of this subsection (3), "independent entity" means:
The office of alternate defense counsel;
An attorney or a group of attorneys, each of whom has substantial experience practicing criminal defense in Colorado within the preceding five years, so long as the attorney or group of attorneys is not affiliated with the municipality receiving the services, including any municipal judge, prosecutor, or indigent defense attorney; or
A local or regional independent indigent defense commission, as described in subsection (3)(d) of this section.
(d) (I) To satisfy the requirement described in subsection (3)(a) of this section, a municipality may establish a local independent indigent defense commission or coordinate with one or more other municipalities to establish a regional independent indigent defense commission. Any local or regional independent indigent defense commission in existence as of January 1, 2018, is deemed to be in compliance with this subsection (3)(d) and may continue as established.
Each local or regional independent indigent defense commission must include atleast three members, each of whom is selected by the chief municipal judge in consultation with the Colorado criminal defense bar, the office of alternate defense counsel, or the office of the state public defender. Prior to serving on a commission, any commission member who is selected by a chief municipal judge must be approved by the office of alternate defense counsel. The office of alternate defense counsel shall approve such appointed commission members whom the office, in its discretion, deems likely to promote the provision of competent and independent indigent defense.
The terms and procedures for the members of a local or regional independent indigent defense commission must be determined by the municipality or municipalities that establish the independent indigent defense commission.
A local or regional independent indigent defense commission established pursuantto this subsection (3)(d) has the responsibility and exclusive authority to appoint indigent defense counsel for a term of at least one year or more to be served until a successor is appointed. The independent indigent defense commission retains sole authority to supervise the indigent defense counsel and discharge him or her for cause.
A local or regional independent indigent defense commission, through its ability tosupervise, appoint, and discharge the indigent defense counsel, shall ensure that indigent defendants accused of violations of municipal ordinances for which there is a possible sentence of incarceration are represented independently of any political considerations or private interests, that such indigent defendants receive legal services that are commensurate with those available to nonindigent defendants, and that municipal indigent defense attorneys provide representation in accordance with the Colorado rules of professional conduct and the American bar association standards relating to the administration of criminal justice.
A local or regional independent indigent defense commission shall not interferewith the discretion, judgment, and zealous advocacy of indigent defense attorneys in specific cases.
A local or regional independent indigent defense commission shall make recommendations to its municipality or municipalities regarding the provision of adequate monetary resources to provide legal services to indigent defendants accused of violations of such municipal ordinances.
The members of an independent indigent defense commission shall serve withoutcompensation; except that a municipality that establishes a local independent indigent defense commission or that coordinates with one or more other municipalities to establish a regional independent indigent defense commission shall reimburse the members of the commission for actual and reasonable expenses incurred in the performance of their duties.
Source: L. 2016: Entire section added, (HB 16-1309), ch. 366, p. 1540, § 2, effective July 1, 2018. L. 2018: (3) added, (SB 18-203), ch. 354, p. 2110, § 1, effective August 8.
Editor's note: Section 1 of House Bill 17-1316 changed the effective date of this section from May 1, 2017, to July 1, 2018. (See L. 2017, p. 607).
Cross references: For the legislative declaration in HB 16-1309, see section 1 of chapter 366, Session Laws of Colorado 2016.