Rule 44 Right to Assignment of Counsel
Rule Text
(a) When right attaches. —
(1) Any person financially unable to obtain adequate representation who is charged with a crime for which violation, incarceration as a punishment is a practicable possibility or with juvenile delinquency is entitled to appointed counsel. The right extends from the first appearance in the court through appeal.
(2) Any probationer, including an adjudged delinquent juvenile, who is alleged to have violated the terms of a probation order, for which violation incarceration is provided by law, and who is financially unable to obtain adequate representation is entitled to appointed counsel if, after being informed of the right, requests that counsel be appointed to represent him/her.
(3) A fugitive has a limited right to be represented in extradition proceedings as provided in W.S. 7-3-210.
(b) Procedure. — The procedures for implementing the right set out in subdivision (a) shall be those provided by W.S. 7-6-101 et seq. and by these rules. The appointment of counsel for delinquency cases is governed by W.S. 14-6-222 and, fees, costs and expenses for delinquency cases are governed by W.S. 14-6-235.
(1) The determination of a defendant’s eligibility for appointed counsel is a judicial function. An attorney should be appointed at the earliest time after a defendant makes a request, but only after appropriate inquiry into the defendant’s financial circumstances and a determination of eligibility.
(2) A defendant requesting appointed counsel must submit a financial affidavit or provide sworn testimony on the record detailing income, expenses, assets and liabilities and may be required to update the affidavit or testimony from time to time.
(3) The judicial officer shall advise any defendant who has requested appointed counsel that, to the extent of ability to do so, the defendant will be required to contribute to the cost of representation. At the time counsel is appointed, the judicial officer shall determine the defendant’s ability to make monthly or other periodic payments and require the defendant to make such payments to the clerk of the court as a condition of the appointment.
(4) If at any time after appointment it appears to a judicial officer that a defendant is financially able to make payment, in whole or in part, for legal services, the judicial officer shall require such payments or terminate the appointment.
(5) A separate order of appointment shall be entered as part of the record by the court for each defendant.
(6) After a hearing, a judicial officer may permit a defendant to withdraw a request for appointed counsel.
(7) If appointed counsel obtains information that a client is financially able to make payment in whole or in part for legal services in connection with his or her representation and the source of the attorney’s information is not protected as a privileged communication, counsel shall advise the court and as [ask] that the person be required to contribute to the cost of representation or that the appointment be terminated.
(8) Appointed counsel shall represent the defendant at every stage from initial appearance through appeal; however, the appellate section of the public defender’s office may be substituted for trial counsel to handle an appeal.
(c) Joint representation. — Whenever two or more defendants have been charged with offenses arising from the same or related transactions and are represented by the same retained or assigned counsel or by retained or assigned counsel who are associated in the practice of law, the court shall promptly inquire with respect to such joint representation and shall personally advise each defendant of the right to the effective assistance of counsel, including separate representation. Unless it appears that there is good cause to believe no conflict of interest is likely to arise, the court shall order separate representation.
(d) Rules establishing standard of indigency. — Rule 44(d) is adopted as required by W.S. 7-6-103(c). A person is entitled to the appointment of counsel if, at the time counsel is needed, the person is unable to provide for the full payment of an attorney and all other necessary expenses of representation. In making a determination of eligibility, the judicial officer shall consider:
(1) The probable cost of representation given the number and severity of the offenses charged and the factual and legal complexity of the case.
(2) The defendant’s income from all sources and the defendant’s capacity to earn income.
(3) The expenses of the defendant’s household and whether a spouse or roommate contributes or ought to contribute to those expenses.
(4) The defendant’s responsibility for the support of others.
(5) The defendant’s assets whether held individually or with others.
(6) The defendant’s debts and the periodic payments due on the debts.
(7) The defendant’s capacity to borrow money. Uncertainty as to a defendant’s eligibility for appointed counsel should be resolved in the defendant’s favor. An erroneous determination of eligibility may be corrected at any time.
(e) Compensation and expenses of appointed counsel. —
(1) District, juvenile, and circuit courts shall generally appoint the public defender’s office to represent indigent persons, but may, for good cause, appoint private counsel. Unless otherwise provided by ordinance, municipal courts shall appoint private counsel to be paid by the municipality.
(2) Private counsel designated by the public defender’s office or by a judicial officer may be compensated at a rate not to exceed one hundred fifty dollars ($150.00) per hour.
(A) Payment of private counsel designated by the public defender’s office shall be made by that office and approval by a judicial officer shall be neither requested nor required. Transcripts and other extraordinary expenses and expert witness fees must be approved by the public defender’s office prior to being incurred. Counsel shall make known to the public defender’s office those cases which will be extended or complex.
(B) Payment for private attorneys appointed by the court must be approved by a judicial officer before being submitted to the public defender’s office for payment. Vouchers (which are available in the public defender’s office) and a supporting invoice detailing the services provided and expenses incurred must be submitted to the court for review. The judicial officer shall approve fees at the rates provided in this section for time necessarily expended and expenses necessarily incurred. Transcripts and other extraordinary expenses and expert witness fees must be approved by the court prior to being incurred. Counsel shall make known to the court and to the public defender’s office those cases which will be extended or complex.
(3) If travel is necessary as part of the attorney’s compensation, the court or the public defender’s office must be immediately notified. Travel expenses may be allowed and shall be paid according to the state per diem rates.
Amendment history: Amended July 22, 1993, effective October 19, 1993; amended June 30, 2000, effective July 1, 2000; amended May 8, 2001, effective September 1, 2001; amended December 2, 2002, effective January 6, 2003; amended December 17, 2002, effective January 1, 2003; amended September 5, 2006, effective January 1, 2007; Amended August 5, 2025, effective October 6, 2025. Compare. — Rule 44, Fed. Rules Cr. Proc. The 2006 amendment, effective January 1, 2007, in (e)(2) increased fee amounts. The first 2002 amendment, in (e)(1), deleted “justice of the peace courts” and made related changes. The second 2002 amendment, in (e)(2), raised the cap on the compensation rate for private counsel from $50.00 to $60.00 per hour. “Stage of the proceedings” defined. — A “stage of the proceedings” is a point in the proceedings in which an important aspect occurs or fails to occur. Chavez v. State, 604 P.2d 1341, 1979 Wyo. LEXIS 505 (Wyo. 1979), cert. denied, 446 U.S. 984, 100 S. Ct. 2967, 64 L. Ed. 2d 841, 1980 U.S. LEXIS 1922 (U.S. 1980). Scope of rule. — The trial itself is not the only critical stage of the proceedings for the purpose of effective representation of counsel, but that stage also includes arraignment, preliminary hearing, the initiation of adversary judicial criminal proceedings, custodial interrogation, post-indictment lineup and corporeal identification after the initiation of adversary judicial criminal proceedings. Chavez v. State, 604 P.2d 1341, 1979 Wyo. LEXIS 505 (Wyo. 1979), cert. denied, 446 U.S. 984, 100 S. Ct. 2967, 64 L. Ed. 2d 841, 1980 U.S. LEXIS 1922 (U.S. 1980). Multiple representation requires waiver, absence of conflict. — If the defendant insists on retaining an attorney who is representing another co-defendant, the judge must obtain a knowing and voluntary waiver of the right to be represented by an attorney free from any conflict of interest and determine that no real conflict exists. Kenney v. State, 837 P.2d 664, 1992 Wyo. LEXIS 94 (Wyo. 1992). No conflict of interest. — Although two public defenders were assigned to represent defendant and co-defendant, there was no conflict of interest because defendant was not aware that another public defender had been assigned to co-defendant and defendant’s public defender. Asch v. State, 2003 WY 18, 62 P.3d 945, 2003 Wyo. LEXIS 20 (Wyo. 2003). Attorney cannot represent “heavy” and “follower”. — An attorney should not have undertaken joint representation where under the factual circumstances existent between the codefendants, one person likely was the “heavy” as the principal and the other constituted the “follower”; joint representation was sure to disfavor one or the other. Kenney v. State, 837 P.2d 664, 1992 Wyo. LEXIS 94 (Wyo. 1992). Four reasons for defendant’s attorney to be present at preliminary hearing. — See Haight v. State, 654 P.2d 1232, 1982 Wyo. LEXIS 416 (Wyo. 1982). There is distinction between uncounselled failure to assert speedy-trial right and counselled one. — Estrada v. State, 611 P.2d 850, 1980 Wyo. LEXIS 279 (Wyo. 1980). Revocation of probation. — Although subdivision (a)(2) of this rule limits the circumstances under which the court is required to appoint counsel in a probation revocation proceeding, a defendant is constitutionally entitled to court-appointed counsel in the specific circumstance when the proceeding includes sentencing. Nelson v. State, 934 P.2d 1238, 1997 Wyo. LEXIS 55 (Wyo. 1997) (decided under prior law). Defendant was not properly advised of her right to be represented by an attorney, and she did not voluntarily, knowingly, and intelligently waive her right to counsel, Wyo. R. Crim. P. 44(a)(2); defendant should have been advised that she had the right to consult with counsel before entering the plea, Wyo. R. Crim. P. 39(a)(3)(A), Wyo. Stat. Ann. § 7-6-106(a). Rodriguez v. State, 2010 WY 61, 230 P.3d 1111, 2010 Wyo. LEXIS 64 (Wyo. 2010). Under Wyoming’s judicial revocation procedure where the state is represented by a prosecutor and the rules of evidence apply to a portion of the proceedings, the Sixth Amendment requires appointment of counsel for indigent probationers when the indigent probationer was entitled to be represented by an attorney under § 7-6-104(a). An inescapable corollary to such a holding is the invalidation of subdivision (a)(2), in the context of judicial revocations. Pearl v. State, 996 P.2d 688, 2000 Wyo. LEXIS 25 (Wyo. 2000) (decided prior to 2001 amendment to subdivision (a)(2)). Failure to make reasonable examination. — Waiver of right to counsel was not voluntary where circuit court asked only the amount of petitioner’s monthly income and then ordered him to sign a waiver of his right to be tried with assistance of counsel; the circuit court did not make a reasonable examination into petitioner’s ability to pay for an attorney. Wilkie v. State, 2002 WY 164, 56 P.3d 1023, 2002 Wyo. LEXIS 184 (Wyo. 2002). Appointment of counsel not required. — Court properly denied defendants’ motions for appointment of counsel in their motions to correct illegal sentences because a motion to correct an illegal sentence was not a critical stage of criminal proceedings, and although defendants made uncorroborated claims about the deficiencies in the legal resources available to them in prison, they did not establish the actual injury required to demonstrate a violation of their constitutional right to access to courts. Gould v. State, 2006 WY 157, 151 P.3d 261, 2006 Wyo. LEXIS 176 (Wyo. 2006), cert. denied, 552 U.S. 854, 128 S. Ct. 125, 169 L. Ed. 2d 88, 2007 U.S. LEXIS 9472 (U.S. 2007).