Jay SCHIEFER, Appellant (Defendant), v. The STATE of Wyoming, Appellee (Plaintiff).
No. 87-214.
Supreme Court of Wyoming.
May 12, 1989.
773 P.2d 133
* Retired June 29, 1988.
Julie D. Naylor, Appellant Counsel, Public Defender Program, for appellant.
Joseph B. Meyer, Atty. Gen., John W. Renneisen, Deputy Atty. Gen., and Karen A. Byrne, Asst. Atty. Gen. (argued), for appellee.
Before CARDINE, C.J., and THOMAS, URBIGKIT and MACY, JJ., and BROWN, J., Retired.*
CARDINE, Chief Justice.
Appellant, Jay Schiefer, seeks review of a judgment and sentence of the district court which, in a trial to the court without a jury, found him guilty of forgery as provided in
We affirm the conviction but vacate the requirement that Schiefer reimburse the costs of his court-appointed counsel.
The victim of this crime, Margaret Buchman, is an elderly woman in poor health who lived alone in a small apartment in Gillette, Wyoming. Schiefer lived across the street from Mrs. Buchman and, during a two-year period ending in September 1986, helped her by doing such things as cashing her social security checks, paying
There was evidence presented at trial establishing that Schiefer cashed the 1986 refund check at the market where he regularly had cashed Mrs. Buchman‘s other checks. The market required that the checks cashed by Schiefer have Mrs. Buchman‘s “X” on them and, in addition, that he sign as the individual who had cashed the checks. When Mrs. Buchman did not receive her 1986 refund check, she sought help from the police department. A Gillette police officer requested that Schiefer surrender the check. Schiefer provided the officer with $330, indicating that was the amount of the check he had cashed. The check itself was produced into evidence, and it was made out to Mrs. Buchman in the amount of $630 and had been cashed by Schiefer. Although Schiefer did not testify at trial, it was not disputed that he cashed the check.
Schiefer raises three issues in this appeal:
- He contends there was insufficient evidence of intent to commit fraud.
- He asserts that his prior relationship with Mrs. Buchman made him her agent and this, combined with her acceptance of the $330 tendered her through the police officer, constitutes a ratification of the unauthorized signature negating the crime of forgery.
- He contends the district court‘s assessment of reimbursement for court-appointed counsel is incorrect.
SUFFICIENCY OF EVIDENCE OF INTENT
We apply the same test to a challenge of sufficiency of evidence whether trial is to the court or to a jury. Washington v. State, 751 P.2d 384, 387 (Wyo.1988). Applying that test, we determine whether the evidence is sufficient to support a reasonable inference of guilt beyond a reasonable doubt, to be drawn by the fact finder, when the evidence is viewed in a light most favorable to the State. Id.
In this case the district court made a specific finding that Schiefer “had the requisite intent to defraud by obtaining money which he was not entitled to by cashing the check.” There is no question but that the crime of forgery has as one of its elements a specific intent, i.e., a “fraudulent intent.” Grable v. State, 649 P.2d 663, 676 (Wyo. 1982). Schiefer claims there was absolutely no evidence of intent to defraud and, on the contrary, the evidence showed that Schiefer told Mrs. Buchman that he had received the check, that he gave her $330 from the check, that Mrs. Buchman said she would give him $50 from the check,
“there was only a misunderstanding of how much money [Schiefer] was entitled to for his services of cashing the check: the $300 that he received the year before, or the $50 that Mrs. Buchman said she was going to give him in 1986. This case is quite simply a contract dispute in which the State has decided to intervene and press charges.”
Initially, we must acknowledge that the evidence presented at trial does not support Schiefer‘s contention that this was merely a contract dispute. Schiefer‘s factual scenario is not supported by the record; but more importantly, it wholly ignores the test we apply in evaluating the sufficiency of evidence. When the evidence is viewed in a light most favorable to the State, there is sufficient evidence to support the conclusion that Schiefer cashed the 1986 refund check without having authority to do so. Indeed, Schiefer cashed the check contrary to Mrs. Buchman‘s specific directions, and he did so with the intent of defrauding her of at least $300. We perceive Schiefer as really contending that there was no “direct” evidence of his intent. Specific intent to commit a crime may be shown by circumstantial evidence. Jones v. State, 568 P.2d 837, 845 (Wyo.1977). The mind of an alleged offender may be read from his acts, his conduct, his words and the reasonable inferences which may be drawn from the circumstances of the case. To hold otherwise would create an impossible burden in a case requiring a finding of specific intent. Id. We hold that the evidence presented at trial was sufficient for the district court to draw an inference that Schiefer acted with the requisite specific intent to defraud Mrs. Buchman. See Grable, 649 P.2d at 676; State v. Grider, 74 Wyo. 88, 284 P.2d 400, 407 (1955).
RATIFICATION
Schiefer contends that Mrs. Buchman ratified his forgery of her signature by accepting $330 from him, and therefore he is guilty of petty larceny rather than forgery. To sustain this contention, he relies upon the Uniform Commercial Code which provides that: “Any unauthorized signature may be ratified for all purposes of this article.”
REIMBURSEMENT FOR SERVICES OF COURT-APPOINTED COUNSEL
Schiefer asserts that the district court improperly required him to reimburse the State of Wyoming and the County of Campbell for the services of his court-appointed counsel as a part of his sentence. In Schiefer‘s sentence, the district court directed that he reimburse $1500 for his court-appointed counsel and, further, the district court reserved the right to make an additional assessment for attorney‘s fees at the conclusion of any appeal. We agree that the entire assessment is improper. The assessment was made pursuant to
The judgment and sentence of the district court is affirmed except as modified.
URBIGKIT, J., files a dissenting opinion.
URBIGKIT, Justice, concurring in part and dissenting in part.
As originally assigned to write this opinion, I specially concur in affirming the conviction of the crime of forgery. The place where I specifically differ from the majority as now written is in regard to features of assessed punishment.
I. GUILT ISSUES
Before reaching the fine and penalty questions resulting from the sentence, I would further discuss my perception of the ratification defense by special concurrence. This defense was strongly presented by appellant, Jay Schiefer (Schiefer), to deny crime commission.
By this argument, Schiefer attacks proof of the fraudulent intent required for conviction. The defense is factually based upon the acceptance by Mrs. Margaret Buchman (Buchman) of a portion of the check proceeds delivered by Schiefer.
My address to the subject considers that ratification is not an issue, whether justified by
Schiefer‘s reliance on the U.C.C. and Rowray v. Casper Mut. Building & Loan Ass‘n, 48 Wyo. 290, 45 P.2d 7 (1935) as dispositive of this ratification-defense issue is misplaced. While this court did say in Rowray, 45 P.2d at 12-13, “a signature written in a party‘s absence may be adopted even when forged,” that case is clearly distinguishable from the case at bar. Rowray involved a civil action and questioned the effect of the formal acknowledgment of a mortgage and promissory note which allegedly bore the wife‘s forged name. Additionally, Rowray, 45 P.2d at 13 distinguished the terms ratification and adoption—“accurately speaking a ratification is an adoption and more.” In context, that case is not precedent for ratification to be used as a defense to criminal forgery.
Furthermore, the crime of forgery, although requiring a fraudulent intent, does not require that anyone actually be defrauded. 2 W. LaFave and A. Scott, Substantive Criminal Law § 8.7(j)(5) (1986); R. Perkins and R. Boyce, Criminal Law ch. 4, § 8 (3d ed. 1982); M. Wingersky, A Treatise on the Law of Crimes (Clark & Marshall) §§ 12.32 and 12.33 (6th ed. 1958); 2 W. Burdick, The Law of Crime § 663 (1946). See also, Miller v. State, 732 P.2d 1054 (Wyo.1987), restitution is not necessarily a defense to obtaining property by false pretenses because the crime is complete upon the transfer. Since the criminality is assessed upon one‘s mental condition at the time of the act, restitution and ratification are inappropriate defenses; simply, any after-thoughts that appellant may later develop are irrelevant to the
II. TERMS OF THE SENTENCE
I find two basic problems with the complex sentence entered in this case.
1. A fundamental finance related punishment is presented for a convicted defendant without demonstrated funds or earning capacity; and
2. The Wyoming statutes on restitution, cost repayment, and fines have been amended substantially since the date of offense and may have been considered for the sentence entered.
After the bench trial where Schiefer was found guilty of forgery, he was sentenced to a penitentiary term of not less than fifteen months nor more than thirty months, fined $1000, assessed the $25 victim‘s surcharge, and then with the confinement sentence suspended, placed on probation for a period of three years with conditions which included:
5. Make restitution to the victim of this crime pursuant to
Wyoming Statute 7-13-109 and the Court specially finds the amount of pecuniary damages to each victim of the defendant‘s criminal activities as follows: Three Hundred Dollars ($300.00) to be paid to Margaret Buchman for which execution may issue.6. Reimburse the State of Wyoming and the County of Campbell for the services of court-appointed counsel according to the schedule established. The Court determines the reasonable value of the legal services provided to be One Thousand Five Hundred Dollars ($1,500.00). The Court reserves the right to assess additional attorney‘s fees at the conclusion of any appeal of this case.
7. Make regular periodic payments until the fine, restitution and attorney fees are fully paid:
a. Payments shall be as established or revised by a probation officer based upon the ability to pay but not less than One Hundred Twenty Five Dollars ($125.00) per month. (If the defendant is unable thru reasonable diligence to make the minimum payment required he may petition the Court for hearing on that issue).
* * * * * *
IT IS FURTHER ORDERED that pursuant to
Wyoming Statute § 7-13-303 andWyoming Statute § 7-13-702 et. seq. , the defendant shall perform work as an additional condition of probation. The work shall be performed whenever the defendant fails to make the minimum payments required for fines, costs or attorney fees and regardless of payment history, and may be required by the probation officer when work is available and performance of the work would not interfere with the defendant‘s employment. The work shall be performed under the supervision of the Campbell County Sheriff and credit for the work shall be granted at the statutory rate, first against the fines, then against attorney fees and costs. The defendant may pay off his fines and attorney‘s fees by working at a rate of Four Dollars ($4.00) per hour but must pay his restitution in cash.and
[I]n the event of a revocation of probation no credit will be given for time successfully served on probation.
In first juncture, although in agreement with the majority in denial of attorney‘s fee assessments, I reach that result and consider the other questions about the general monetary terms of the sentence provisions with a more detailed analysis.
The dates of the offense and subsequent proceedings become important because of the many changes which took place in the criminal sentencing statutes during the time frame of this case.2 New sentencing statutes more recently enacted3 to be even more restrictive and punitive cannot be applied to Schiefer.
If a statute is repealed or amended, the repeal or amendment does not affect pending actions, prosecutions or proceedings, civil or criminal. If the repeal or amendment relates to the remedy, it does not affect pending actions, prosecutions or proceedings, unless so expressed, nor shall any repeal or amendment affect causes of action, prosecutions or proceedings existing at the time of the amendment or repeal, unless otherwise expressly provided in the amending or repealing act.
Since the most current legislature is silent in the pertinent amending and repealing provisions, the changes cannot affect Schiefer‘s sentencing if enacted since the crime occurred. Further, the legislature, in the savings clause of the 1982 Wyoming Criminal Code, expressed the intent that the laws applicable to criminal prosecutions are the ones in effect on the date when the crime occurred. See
A. Analysis
Although the only aspect of the sentence challenged by Schiefer in his brief was the assessment of attorney‘s fees, the propriety of assessing the $1000 fine, $300 restitution, and $25 surcharge for victim‘s compensation against him as terms of probation contravening the imprisonment for debt constitutional prohibition lacking any demonstration of ability to pay were raised in oral argument.
Imprisonment for debt is usually thought of as a barbarous custom which declined continuously as civilization and Christianity advanced and which was totally done away with long ago. The facts, however, are otherwise. Ford, Imprisonment For Debt, 25 Mich.L.Rev. 24, 24 (1926).
Wyo. Const. art. 1, § 5 provides that “[n]o person shall be imprisoned for debt, except in cases of fraud.”4 While the instant case did involve forgery which has a fraudulent intent element, fraud is distinguishable from intent to defraud and is not an element of forgery. Century Federal Sav. and Loan Ass‘n of Long Island v. Roudebush, 618 F.2d 969, 971 (2d Cir.1980); Milton v. United States, 71 App.D.C. 394, 110 F.2d 556, 561 (1940); People v. Rising, 207 N.Y. 195, 198, 100 N.E. 694 (1912). Therefore, we must address whether Schiefer‘s sentence constitutes imprisonment for debt under the Wyoming constitutional restraint.5
Consequently, with the monetary aspects of the sentence imposed, an analysis is required whether these statutes were constitutionally applied to Schiefer.
The United States Supreme Court in a trilogy10 of cases has been faced with the conflict of an indigent defendant and constitutionally allowable sentencing.11 The first chapter of this law was developed in Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970), which found, under the Equal Protection Clause, that a sentence was unconstitutional which extended the maximum confinement when a defendant had not satisfied the monetary provisions of his sentence. The second case is Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971), where the court determined that it was improper to imprison a defendant solely because of his indigence when the offenses which precipitated the fines were municipal in nature and were punishable by fines only. The third and most recent case of Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) has the most application to Schiefer because both situations involve fines and restitution as conditions of probation. In Bearden, 103 S.Ct. at 2070, the court held “if the State determines a fine or restitution to be the appropriate and adequate penalty for the crime, it may not thereafter imprison a person solely because he lacked the resources to pay it,” although leaving open the avenue that one, whether indigent or not, could be imprisoned for willfully refusing or neglecting to pay a fine or costs.
Simply because Schiefer‘s probation has not been revoked, does not validate the conditions of probation placed upon him. “The fact that incarceration was imposed after a period of probation rather than immediately upon conviction is not constitutionally significant, where the only ground for the imprisonment is the inability to pay.” State v. Crawford, 54 Ohio App.2d 86, 375 N.E.2d 69, 70 (1977). One can only be found to be in violation of a condition of probation that requires money payments if the person is in a reasonable financial position to make the payments. Hamrick v. State, 519 So.2d 81, 82 (Fla.App.1988); Mack v. State, 440 So.2d 602 (Fla.App.1983); Smith v. State, 373 So.2d 76, 77 (Fla.App.1979); Jones v. State, 360 So.2d 1158, 1159-60 (Fla.App.1978).
Factually, this record discloses no evidence that Schiefer willfully or intentionally failed or refused to pay or gain employment to pay the monetary assessment as would be required under Bearden, 461 U.S. 660.12 Furthermore, there is no actual evidence of his present employment opportunities and it is clear that he has no assets or estate for payment reliance (nor even a mother to assist). Wyoming has long held there must be an ability to pay found before monetary assessments can be a constitutional part of the criminal sentence. See State v. Posey, 77 Wyo. 258, 314 P.2d 833, 837 (1957), where we held:
Just debts should be paid and the law is adequate to compel their payment where there is an ability to pay, but the criminal law is not a process to be subserved for that purpose. Imprisonment for debt is no longer a part of our law. [Emphasis added.]
Granted, this court previously has held a fine is not a debt. In re MacDonald, 4 Wyo. 150, 33 P. 18 (1893). However, in the ninety-five years that have passed since that decision, I have seen the fallacy in that view as applied to the reality faced by the indigent criminal defendant. Consequently, that case has no present validity today under decisions of the United States Supreme Court considering penal assessment of fines, restitution, surcharge,13 and attorney‘s fees where ability to pay is not demonstrated.14
The application of restitution and cost repayment statutes without a judicial finding of ability to pay are statutes designed as debt collecting devices masquerading as penal laws and contravene the constitutional prohibition against imprisonment for debt. See Turner v. State ex rel. Gruver, 168 So.2d 192, 194 (Fla. App.1964) (citing 16 C.J.S. Constitutional Law § 204(4) (1984)).
When a court imposes a fine known to be beyond the ability of the defendant to pay, it has, effectively, imposed a sentence of imprisonment after determining that the policy considerations called for a financial sanction. The fine may thus become a guise for imprisoning the poor whenever the sentencing judge believes that the maximum term provided by statute is not sufficiently severe. A defendant should not be sentenced to imprisonment simply because he cannot pay a fine at the time of the judgment. The severity of the punishment should be measured by its corrective value rather than by reason of the defendant‘s wealth. Note, Imprisonment for Nonpayment of Fines and Costs: A New Look at the Law and the Constitution, 22 Vand.L.Rev. 611, 621-22 (1969) (footnote omitted). See Godwin v. Godwin, 268 Ark. 364, 596 S.W.2d 695, 697 (1980) for the recognition of the importance of the judicial finding of ability to pay to avoid violation of the Arkansas prohibition against imprisoning for debt. Cf. Hicks on Behalf of Feiock, in considering application of either criminal or civil contempt payment obligations.
The latitude provided by the trial court for Schiefer to “work off” his debt still does not constitutionally save the sentence since “[t]he opportunity to move for a substitution of community service after costs have already been assessed is not equivalent to notice of and an opportunity to object to such costs prior to their assessment.” Mays v. State, 519 So.2d 618, 619 (Fla.1988) (emphasis added).
Additionally, the record provides no evidence that a realistic job opportunity existed in the sheriff‘s office for a one hand man. This was not a work sentence pursuant to
B. Appellate Attorney‘s Fees
The trial court also erred in reserving the right to assess additional attorney‘s fees. The trial court exceeded its jurisdiction since only this tribunal may assess appellate attorney‘s fees. Dewitt v. Balben, 718 P.2d 854 (Wyo.1986).
“Should the procedure [whereby the supreme court awards appellate attorney fees] be considered exclusive? We think it should. Public policy and the public interest require such a holding. In the first place, appeals to the supreme court are from a judgment or ‘final order’ of the district court. Except for the per-
formance of further duties assigned to him under the rules or statutes, the jurisdiction of the trial judge should end with the entry of the final judgment or order appealed from. * * * * * *
“There is good reason for the supreme court rather than the district court to pass upon the need for ordering payment of an attorney‘s fee in an appeal, and the supreme court is in a better position to say what, under the circumstances, is a reasonable and proper fee for legal service in that court.”
Id. at 866 (quoting Rubeling v. Rubeling, 406 P.2d 283, 285-86 (Wyo.1965)) (emphasis in original).
As the Kansas Court of Appeals in Olsen v. Olsen, 7 Kan. App.2d 472, 643 P.2d 1153, 1155-56 (1982) aptly put it:
For a trial court to render an informed decision on the matter, it would have to study the appellate briefs, perhaps have a transcript of the oral arguments made before the appellate court, and study the appellate court‘s opinion or memorandum to decide whether the court rested its decision on any of the parties’ arguments. The trial court would be asked to do what the appellate court is already in the position to do at the end of the appeal. The trial court‘s decision would then, of course, be subject to appeal, bringing the matter back full circle.
Also, the procedure suggested by defendant would put the trial court in the tenuous position of deciding whether an appeal from one of its own decisions was meritless or frivolous.
The trial court was putting a penalty on Schiefer‘s right to appeal which cannot be constitutionally approved. Rubeling, 406 P.2d 283.
III. CONCLUSION
Although in the proper case constituting appropriate penal sanctions and system cost repayment obligations, fines, restitution, costs, and attorney‘s fees, as an implement in the criminal proceeding, are impacted similarly with due process and equal protection constraints where denied justice or resulting imprisonment for debt results from poverty.17 As the author in a 1969 analysis recognized at a time predating more recent due process application of the United States Supreme Court:
Yet I hope to make clear that in many instances their purposes could be more soundly and satisfyingly understood as vindication of a state‘s duty to protect against certain hazards which are endemic in an unequal society, rather than vindication of a duty to avoid complicity in unequal treatment.
Michelman, supra, 83 Harv.L.Rev. 7, 9 (1969) (emphasis in original).
This court has previously recognized that it can modify by vacating or striking a part of a divisible sentence which is improper or illegal, and affirming the balance. Laing v. State, 746 P.2d 1247, 1250 (Wyo.1987); Sorenson v. State, 604 P.2d 1031 (Wyo. 1979). Finding error with the imposition of the fine, restitution, costs, surcharge, and assessment of trial court attorney‘s fees imposed as conditions of probation without an ability to pay demonstrated in the record, as well as error in the reservation of assessing appellate attorney‘s fees as being beyond the trial court‘s jurisdiction, I would affirm the judgment and modify the sentence to strike out the conditions of probation requiring reimbursement for attorney‘s fees, the reservation of attorney‘s fees, the restitution, the fine, costs, and the surcharge. State ex rel. Williams v. Blackburn, 484 So.2d 665 (La.1986); State v. Garrett, 484 So.2d 662 (La.1986); State v. Harris, 510 So.2d 434 (La.App.1987). With deletion of the monetary aspects of this sentence, the additional provision imposing work as a probationary condition for debt repayment should also be vacated.
Consequently, I concur in affirming the conviction and substantively dissent in the majority‘s affirmation of the improper provisions contained in the sentence.
Notes
- Fine: Schiefer was sentenced under
W.S. 7-11-515 found in Wyo.Sess. Laws ch. 147, § 2 (1985); effective July 1, 1986, which has been amended and renumbered in 1987 toW.S. 7-11-504 [Wyo.Sess. Laws ch. 157, § 4 (1987); effective May 22, 1987]. - Restitution:
W.S. 7-13-109 (1986 Cum. Supp.) [Wyo.Sess. Laws ch. 27, § 1 (1984); effective June 5, 1984] andW.S. 6-10-110 (1986 Cum.Supp.) [Wyo.Sess. Laws ch. 72, § 1 (1985); effective May 23, 1985] were in effect at the date of the offense. However, the legislature in 1987 amended and renumbered much of the restitution sections which can now be found in Wyo.Sess. Laws ch. 157, § 3 (1987), effective May 22, 1987. Specifically,W.S. 7-13-109 (1986 Cum.Supp.) pertaining to the determination of restitution owed by a defendant correlates withW.S. 7-9-103 .W.S. 6-10-110 (1986 Cum.Supp.) was also amended in 1987, but only to reflect the renumbering of the restitution statutes. - Surcharge: The victim‘s compensation statute in effect at the time of the offense was
W.S. 1-40-119 (1986 Cum.Supp.) [Wyo.Sess. Laws ch. 213, § 1 (1985); effective May 23, 1985], which provided for the $25 surcharge. In 1987, the legislature substantially revamped this statute and raised the surcharge monetary amount to $50.W.S. 1-40-119 [Wyo.Sess.Laws. ch. 154, § 1 (1987); effective May 22, 1987]. - Attorney‘s Fees and Costs: The provisions allowing the assessment of attorney‘s fees and costs to a non-needy person were
W.S. 7-1-110 (1977) [Wyo.Sess. Laws ch. 170, § 1 (1977); effective July 1, 1978] andW.S. 7-1-112 (1977) [Wyo.Sess. Laws ch. 170, § 1 (1977); effective July 1, 1978]. These statutes were modified, expanded, and renumbered to beW.S. 7-6-104 and7-6-106 in 1987 [Wyo. Sess. Laws ch. 157, § 3 and ch. 176, § 1 (1987); effective May 22, 1987]. Moreover,W.S. 7-1-114 (1977) [Wyo.Sess. Laws ch. 170, § 1 (1977); effective July 1, 1978], which permitted the recovery of the expenditure for attorney‘s fees, becameW.S. 7-6-108 [Wyo. Sess. Laws ch. 157, § 3 and ch. 176, § 1 (1987); effective May 22, 1987]. - Work as a Condition of Probation: Imposed under
W.S. 7-13-303 (1986 Cum.Supp.) [Wyo.Sess. Laws ch. 68, § 1 (1984); effective June 5, 1984], which was amended and renumbered in 1987 to becomeW.S. 7-13-304 [Wyo.Sess. Laws ch. 157, § 3 (1987); effective May 22, 1987]. Additionally, the statutes governing the restrictions on work at the time of the offense wereW.S. 7-13-701 through 7-13-704 (1986 Cum.Supp.) [Wyo.Sess. Laws ch. 68, § 1 (1984); effective June 5, 1984], which were amended and becameW.S. 7-16-101 through 7-16-104 [Wyo.Sess. Laws ch. 157, § 3 (1987); effective May 22, 1987].
An exception for fraud is an integral part of many state constitutional prohibitions against imprisonment for debt. Provisions identical to Wyo. Const. art. 1, § 5 can be found in: Ariz. Const. art. II, § 18; Fla. Const. art. 1, § 10; Idaho Const. art. 2, § 15; Kan. Const. B. of R. § 16; N.C. Const. art. I, § 28; and S.C. Const. art. I, § 19. For states that disallow imprisonment for debt unless there is “a strong presumption of fraud,” see Colo. Const. art. II, § 12; Ill. Const. art. 1, § 14; Ky. Const. B. of R. § 18; Mont. Const. art. II, § 27; N.D. Const. D. of R. § 15; Pa. Const. art. 1, § 16; and R.I. Const. D. of R. § 11. Confinement of imprisonment for debt provisions to civil actions occur in some states such as Ark.D. of R. § 16; Iowa, B. of R. § 19; Neb.B. of R. § 20; and Ohio Const. art. I, § 15. While there are many variations of the same theme among the states, fraud is an exemption from imprisonment for debt provisions in Ind. Const. art. 1, § 22 and N.J. Const. art. 1, ¶ 13. Minnesota allows imprisonment for debt if the person was “charged with fraud in contracting said debt,” Minn. Const. art. 1, § 11. Nevada excepts out libel and slander in addition to fraud, Nev. Const. art. 1, § 14, whereas Michigan exempts cases of breach of trust plus fraud, Mich. Const. art. I, § 21. Oregon mandates that imprisonment for debt is prohibited except in cases of fraud or “absconding debtors,” Or. Const. art. I, § 12, and Utah in Utah Const. art. I, § 17 and Washington in Wash. Const. art. 1, § 16, limit the permissible scope of imprisonment for debt to cases of absconding debtors.
More infrequently, courts have analyzed the imprisonment for debt issue that occurs with an indigent criminal defendant under the U.S. Const. amend. VIII proscription against cruel and unusual punishment and excessive fines. See Grimes v. Miller, 429 F.Supp. 1350, 1355 (N.C.), aff‘d 434 U.S. 978, 98 S.Ct. 600, 54 L.Ed. 2d 473 (1977); Abbit v. Bernier, 387 F.Supp. 57, 60 n. 7 (D.Conn.1974); and People v. Saffore, 18 N.Y.2d 101, 271 N.Y.S.2d 972, 218 N.E.2d 686 (1966).
If a defendant sentenced to pay a fine or costs defaults in payment, the court may order the defendant to show cause why he should not be committed to jail. If the court finds that the defendant‘s default is willful or is due to a failure on defendant‘s part to make a good faith effort to obtain the funds required for payment, the court may order him committed until the fine or costs, or a specified part thereof, is paid. The defendant shall be given a credit for each day of imprisonment at the rate provided by
(b) At the time of sentencing a defendant for any misdemeanor or felony conviction, if the court desires to require restitution, the court shall fix a reasonable amount as restitution owed to each victim for pecuniary damages resulting from the defendant‘s criminal activity, and shall include its determination as a special finding in the judgment of conviction.
Moreover,
In addition to any other punishment prescribed by law the court may, upon conviction for any misdemeanor or felony, order a defendant to pay restitution to each victim as prescribed under
(a) In addition to any fine or other penalty prescribed by law, a defendant who pleads guilty to or is convicted of the following criminal offenses shall be assessed a surcharge as provided by this subsection:
(i) For any felony offense, a surcharge of twenty-five dollars ($25.00).
(a) A needy person who is being detained by a law enforcement officer, or who is under formal charge of having committed, or is being detained under a conviction of, a serious crime, is entitled:
(i) To be represented by an attorney to the same extent as a person having his own counsel is so entitled; and
(ii) To be provided with the necessary services and facilities of representation (including investigation and other preparation).
(b) The attorney, services and facilities, and court costs shall be provided at public expense to the extent that the person, at the time the court determines need, is unable to provide for their payment.
Moreover, part of
(a) The determination of whether a person covered by
(b) In determining whether a person is a needy person and in determining the extent of his inability to pay, the court concerned shall consider such factors as income, property owned, outstanding obligations and the number and ages of his dependents. Release on bail does not necessarily prevent him from being a needy person. In each case, the person, subject to the penalties for perjury, shall certify in writing or by other record such material factors relating to his ability to pay as the court prescribes.
(c) To the extent that a person covered by
Further,
(a) The attorney general may, by suit within six (6) years after the date the services were rendered, on behalf of the state, recover payment or reimbursement, as the case may be, from each person who has received legal assistance or another benefit under this act:
(i) To which he was not entitled;
(ii) With respect to which he was not a needy person when he received it; or
(b) Amount recovered under this section shall be paid into the state general fund.
[a]lthough there were no comprehensive statistics, evidence obtained from varied sources indicated that the number of * * * [inability to pay a fine] persons incarcerated was amazingly large—one widely cited estimate placing the figure at between 40% and 60% of all inmates in county jails. This led to the “conservative estimate” that on any day nearly 28,000 persons would be in jail in the United States because they had failed to pay a fine. Choper, Consequences of Supreme Court Decisions Upholding Individual Constitutional Rights, 83 Mich.L.Rev. 1, 117-18 (1984) (footnotes omitted).
Equal justice is clearly lacking where an indigent like [appellant] suffers imprisonment solely because of a financial inability to pay for liberty while his more prosperous counterpart avoids confinement. State v. Tackett, 52 Haw. 601, 483 P.2d 191, 192 (1971).
As Justice Black in Griffin v. Illinois, 351 U.S. 12, 16-17, 76 S.Ct. 585, 589-90, 100 L.Ed. 891 (1956) eloquently espoused:
Providing equal justice for poor and rich, weak and powerful alike is an age-old problem. People have never ceased to hope and strive to move closer to that goal. This hope, at least in part, brought about in 1215 the royal concessions of Magna Charta: “To no one will we sell, to no one will we refuse, or delay, right or justice.... No free man shall be taken or imprisoned, or disseised, or outlawed, or exiled, or anywise destroyed; nor shall we go upon him nor send upon him, but by the lawful judgment of his peers or by the law of the land.” These pledges were unquestionably steps toward a fairer and more nearly equal application of criminal justice. In this tradition, our own constitutional guaranties of due process and equal protection both call for procedures in criminal trials which allow no invidious discriminations between persons and different groups of persons. Both equal protection and due process emphasize the central aim of our entire judicial system—all people charged with crime must, so far as the law is concerned, “stand on an equality before the bar of justice in every American court.” Chambers v. Florida, 309 U.S. 227, 241, 60 S.Ct. 472, 479, 84 L.Ed. 716. [Footnote omitted.]