FILED

COURT OF APPEALS

DIVISfOIq II

IN THE COURT OF APPEALS OF THE STATE OF W

DIVISION II

STATE OF WASHINGTON,

Respondent,

V.

JOHN HYRUM PARKES,

No. 43225 -1 -11

UNPUBLISHED OPINION

0

JOHANSON, J. — John Hyrum Parkes appeals the trial court's order denying his motion

for order of indigency. He argues that the certification in support of his motion for order of

indigency established his inability to pay the costs of his appeal and -that the trial court erred in

determining otherwise. We reverse and remand for further proceedings consistent with this

opinion. 

l

On September 2, 2011, a jury found Parkes guilty of four counts of first degree child

molestation. On October 14, 2011, the trial court sentenced Parkes to 173 months of

confinement. Parkes filed a notice of appeal on November 10, 2011. He moved for an order of

indigency, certifying that he did not own any real property or any personal property, that he had

no income, and that he had unknown amounts of debt. He stated that he could contribute nothing

toward the cost of appellate review.

1 A commissioner of this court.initially considered Parkes's appeal as a motion on the merits

under RAP 18.14 and then transferred it to a panel ofjudges.

2013MAY -7 AM11:47
No. 43225 -1 -II

A presentence investigation report filed with the superior court on October 11, 2011,

revealed that Parkes, a former police officer, made approximately $40 an hour before resigning

from his last job. He told the probation officer who wrote the report that he had "a little bit of a

nest egg put away" and had "some organized debt." Clerk's Papers (CP) at 68. At the time of

the interview upon which the presentence report was based, Parkes had retained private counsel

for his defense.

The court denied Parkes's motion for an order of indigency, making the following

pertinent findings of fact:

3. Defendant had retained counsel throughout the trial proceedings in

this case;

4. During trial, testimony was provided that Mr. Parkes owned a

house with his former wife, Shelley Parkes, in an unknown value; and

5. Defendant was previously employed as - a police officer for many

years and may be entitled to a pension and /or retirement, value of which is

unknown.

CP at 51 -52. Based on those findings, the court made the following conclusions of law:

1. Defendant is not indigent because the record presented does not

satisfy the criteria for indigency set forth in RCW 10. 010(101.);

2. Defendant is not indigent and is able to contribute as set forth in

RCW 10. 010(101.) because the record presented establishes that defendant has

adequate means to pay for all expenses of his appeal;

3. Defendant failed to make an adequate record to determine whether

the defendant is indigent.

CP at 52.

A commissioner of this court granted discretionary review of the order denying Parkes's

motion.

Parkes argues that the trial court erred in denying his motion. The party seeking indigent

status bears the burden of proving indigency. RAP 15. a); 2(State v. Clark, 88 Wn.2d 533, 563

P.2d 1253 (1977). We give great weight to a trial court's findings regarding indigency. State v.

2
No. 43225 -1 -II

Rutherford, 63 Wn.2d 949, 954 -55, 389 P.2d 895 (1964), dismissed, 384 U.S. 267 (1966). When

a party seeks review at public expense, the trial court must determine whether he is able to pay

all or part of the costs of appeal. RAP 15. b). 2(Only if the party has the means to pay the entire

cost of the appeal shall the trial court deny the motion for indigency status altogether. RAP

15. b)(2(). Otherwise, it is the court's duty to determine what items of expense on appeal are to

be shouldered by the party and what will be covered at public expense. RAP 15. e). 2(

When a trial court rules on a motion for order of indigency, it must determine whether a

defendant is indigent using the criteria set forth in RCW 10. 010(101. 3). State v. Hecht, 173

Wn.2d 92, 95, 264 P.3d 801 (2011). An indigent person is one who, at any stage of a court

proceeding, is:

a) Receiving one of the following types of public assistance:

Temporary assistance for needy families, aged, blind, or disabled assistance

benefits, medical care services under RCW 74. 035, 09.pregnant women assistance

benefits, poverty - related veterans' benefits, food stamps or food stamp benefits

transferred electronically, refugee resettlement benefits, medicaid, or

supplemental security income; or

b) Involuntarily committed to a public mental health facility; or

c) --- _ Receiving _an annual income,_ after taxes, of one hundred twentyfive percent or less ofthe current federally established poverty level; or

d) Unable to pay the anticipated cost of counsel for the matter before

the court because his or her available funds are insufficient to pay any amount for

the retention of counsel.

RCW 10. 010( a) -( 101. 3)(d).

The trial court found that Parkes "may" be eligible to receive a pension or retirement, and

did not state the amount of that prospective income. CP at 52. The evidence before the trial

court that Parkes had no income was undisputed. Thus, Parkes was "[ receiving an annual

income, after taxes, of one hundred twenty -five percent or less of the current federally

established poverty level." RCW 10. 010( c). 101. 3)(He is therefore presumptively indigent.

3
No. 43225 -1 -II

Hecht, 173 Wn.2d at 95. Because Parkes put forth evidence that he had no income, the trial

court erred in denying his motion for indigency status outright. Hecht, 173 Wn.2d at 95 -96. It is

possible that his other assets, such as the home he owns or his pension or retirement, make him

indigent and able to contribute." Hecht, 173 Wn.2d at 95; RCW 10. 010(101. 4). However, it is

the trial court's duty to determine what Parkes is or is not able to contribute to the cost of his

appeal. RAP 15. e). 2(Accordingly, we reverse the order denying Parkes's motion for indigency

status and remand to the trial court for that determination.

A majority of the panel having determined that this opinion will not be printed in the

Washington Appellate Reports, but will be filed for public record in accordance with RCW

2. 040, 06.it is so ordered.

P- I -

Johanson, 

1

J