NEW ENGLAND LAW REVIEW MASSACHUSETTS CRIMINAL DIGEST

Commonwealth v. Fico, 462 Mass. 737 (2012)

CONTRIBUTING EDITOR: JACLYN LATESSA I. Procedural History

In December 2009, a grand jury indicted defendant Joseph Fico on two charges related to his alleged involvement in trafficking cocaine.1 At his arraignment on January 29, 2010, the court appointed counsel after Fico filed an affidavit of indigency.2 During a subsequent motion to suppress, a Superior Court judge questioned and took evidence on Ficos indigency status.3 On October 1, 2010, the judge concluded Fico was not indigent, reasoning Fico had available funds . . . from his girl friend and mother.4 The judge then struck the appearance of Ficos counsel before reporting her decision to the Appeals Court per Rule 34 of the Massachusetts Rules of Criminal Procedure.5 The Supreme Judicial Court (SJC) granted Ficos application for direct review.6 II. Facts In April 2009, Fico moved in with his codefendant and girlfriend, Pamela Barberio.7 After their arrest and release on bail, Fico and Barberio moved in with Barberios mother.8 Barberios mother was not indigent and

Commonwealth v. Fico, 462 Mass. 737, 738 (2012). Id. 3 Id. 4 Id. 5 Id.; see Mass. R. Crim. P. 34 (If . . . with the consent of the defendant, after conviction of the defendant, a question of law arises which the trial judge determines is so important or doubtful as to require the decision of the Appeals Court, the judge may report the case so far as necessary to present the question of law arising therein.).
2 6 7 8

Commonwealth v. Fico, supra at 738. Id. at 739. Id.

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was able to pay for Barberios private counsel.9 Fico was wholly supported by Barberios mother and Barberio, who was a part-time student earning about $350 per week.10 After expressing a desire to move in with his own mother, the Superior Court Judge provided Fico with time to present evidence to support his indigency if he proceeded to move in with her.11 Ficos evidence showed that in 2010, his mothers income was $85,000 annually.12 In addition to a mortgage, her other liabilities included $1,200 to a gas utility and a $500 monthly automobile insurance payment.13 Ficos mother testified that every bit of salary she earned went towards commuting to and from work, her mortgage, and automobile insurance, although the materials she offered as proof did not make it into the record.14 At the time of the Superior Courts October 1, 2010 decision, Fico was twenty-four years and earned less than the current poverty threshold.15 Regardless, the Superior Court concluded Fico was not indigent because of the funds available to him through Barberio.16 Moving in with his mother would not alter this status because Ficos mother is not indigent and available funds from her would be attributable to him.17 III. Issues Presented 1. Whether the case is moot because Fico obtained private counsel and resolved both of his criminal cases after the SJC granted review. 2. Whether, after a defendant makes a prima facie showing of indigency, the Commonwealth can only rebut that presumption with proof beyond a reasonable doubt. 3. Whether, to determine indigency status, the court may attribute household income from a girlfriend. 4. Whether, to determine indigency status, the court may attribute household income from a parent to a defendant. IV. Holdings and Reasoning Although this case is moot as to Fico, the SJC exercised its discretion to review the case because the issues raised are of significant public

Id. Id. 11 Id. 12 Commonwealth v. Fico, supra at 739. 13 Id. at 739-740. 14 Id. at 740 n. 5-6. 15 Id. at 739-740. 16 Id. at 740 17 Id.
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importance, over which there appears to be uncertainty.18 Additionally, the issues presented in this case are likely to arise again and escape review.19 Where a defendant seeks to have counsel appointed at the publics expense, the defendant is responsible for proving his indigence by a preponderance of the evidence.20 The SJC addressed this issue in greater detail in Commonwealth v. Porter,21 which was decided the same day as Fico.22 SJC Rule 3:10, 1(b)(ii) allows certain household assets to be attributed to a defendant to determine indigency.23 Commonwealth v. Porter concluded a spouses income may rightfully be attributed to a defendant.24 Although Barberio is Ficos girlfriend and not his spouse, the Superior Court judge determined Fico and Barberio were in substantially the same relationship as a married couple.25 Fico did not contest this issue in the Superior Court and therefore waived his claim to raise it before the SJC.26 Where a defendant is over sixteen years of age and substantially supported by a parent, SJC Rule 3:10, 1(b)(ii) allows the income and assets of that parent to be attributed to the defendant.27 To determine the constitutionality of this rule, the SJC examined it under the rational connection test, which requires a . . . rational connection between the fact proved and the ultimate fact presumed. . . .28 The Court found a rational connection between a parent supporting a dependant adult child and the parent extending support to pay for legal counsel for that child should the need arise.29 However, defendants may rebut this presumption if they can show by a preponderance of the evidence that they do not receive support from their parents, that the parents are unwilling to support them, or that their
18 Commonwealth v. Fico, supra at 743. The Court noted this decision was in accordance with Commonwealth v. McCullough, 450 Mass. 483, 486 (2008). Id. 19 Id. 20 Id. at 744. 21 Commonwealth v. Porter, 462 Mass. 724 (2012). 22 Commonwealth v. Fico, supra at 744. 23 Id. SJC Rule 3:10, 1(b)(ii) states, A party's available funds shall include the liquid assets and disposable net monthly income of the party's spouse (or person in substantially the same relationship) and each of the party's parents, provided, in each instance, any such person lives in the same residence as the party and contributes substantially toward the household's basic living expenses . . . . 24 25 26 27 28 29

Commonwealth v. Fico, supra at 744. Id. at 745. Id. Id. at 746. Id. at 744, quoting Commonwealth v. Porter, supra at 735. Id. at 746.

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parents are unable to provide support.30 This requires the court to evaluate what funds are available to both the parent and the adult child with respect to basic living costs, disposable net monthly income, income, and liquid assets in accordance with SJC Rule 3:10 1.31 The court must examine whether attributing a parents financial resources to a defendant will result in hardship for the parent or impair the parents ability to provide for themselves and any additional dependents.32

30 31 32

Commonwealth v. Fico, supra at 746. Id. at 747. Id.