State v. BallardState v. Ballard
- Reporters:
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- Before:
- Lumpkin
OPINION
LUMPKIN, Presiding Judge:
Appellant, the State of Oklahoma, appeals to this Court on a reserved question of law arising out of a pronouncement by the trial court of Comanche County that
Steve Ballard was charged with and pled guilty to four drug-related counts in the district court of Comanche County, case No. CRF-90-12. At sentencing, Appellee’s attorney argued
We begin with the classic rule of statutory construction, that
[e]very presumption must be indulged in favor of the constitutionality of an act of .the Legislature, and it is the duty of the courts, whenever possible, to harmonize acts of the Legislature with the Constitution. Ex Parte Hunnicutt, 7 Okla.Crim. 213, 123 P. 179, 183 (1912). Where a statute is subject to two constructions, one conforming to and the other contravening the Constitution, that construction which conforms to the Constitution must be adopted. Id. See also State v. Koo, 647 P.2d 889 (Okl.Cr.1982), cert. denied, 459 U.S. 1036, 103 S.Ct. 447, 74 L.Ed.2d 602; Black v. Ball Janitorial Services, Inc., 730 P.2d 510 (Okl.1986).
State v. Hunter, 787 P.2d 864, 865 (Okl.Cr.1990). With that presumption in mind, we turn to Appellee’s arguments at trial, beginning with the equal protection argument that defendants convicted of drug-related crimes are unfairly saddled with an additional expense not imposed on defendants convicted of other crimes.
Subsection (B) of
Concerning the other equal protection argument, that imposition of the assessment unfairly discriminates against indigent defendants, this Court is able, as we stated in
Hunter,
787 P.2d at 865, to interpret the statute in a way that eliminates this discrimination. The legislature enacted section 101 of title 28 which provides, among other things that “all costs in the prosecution of all criminal actions” shall be adjudged as part of the penalty of the offense which a defendant is obligated to pay. The legislature defined the language “all costs in the prosecution of all criminal actions” to include “court clerk’s costs and fees authorized by statute,”
The Legislature also inserted a provision in the statute providing that if a defendant “is without means” to pay the fine, fees or costs, these fines, fees or costs shall be entered on the judgment docket, putting the court in the same position as any other judgment creditor.
Id.
It is this provision— providing for penalties for a willful refusal to pay, but providing for alternate remedies if a defendant is unable to pay — that enables the assessment to withstand a constitutional challenge by an indigent on equal protection grounds. If a defendant cannot pay the assessment because he is without means to do so, he is not thrown into prison or otherwise punished.
We are aware this Court in earlier pronouncements held similar assessment provisions unconstitutional because they denied indigent defendants equal access to the courts under Art. II, § 6 of the Oklahoma Constitution.
See Ex Parte Miller,
97 Okl.Cr. 351, 263 P.2d 522, 523 (1954);
Ex Parte
In light of our interpretation of the assessment fee in connection with
Likewise there is no merit to the contention the provision is unconstitutional because there are no guidelines to aid the court in determining how much to assess a given defendant. There is a range of not less than $500.00 nor more than $3,000.00. The Legislature has not set forth criteria to be considered in determining the assessment. We presume there is regularity in a trial court’s proceedings, Huntley v. State, 750 P.2d 1134, 1136 (Okl.Cr.1988); Tuggle v. Page, 427 P.2d 439, 441 (Okl.Cr.1967); and will consider this, as we do complaints about other assessments, on an individual basis should the complaint be raised on appeal. See e.g., Williams v. State, 762 P.2d 983, 986 (Okl.Cr.1988); Moore v. State, 761 P.2d 866, 877 (Okl.Cr.1988) (dealing with amount of victim’s compensation assessment). 6 A defendant gets individualized attention during sentencing, and during appeal. Individualized attention is not diluted because there are no guidelines for the fee assessment by the trial court.
Implicit in Appellee’s discretion argument to the district court is the other side of the coin: the Legislature, in enacting these assessments and removing the court’s discretion to impose the assessment, violated the separation of powers doctrine found at Art. IV, § 1 of the Oklahoma Constitution. We disagree.
We begin with the observation that distinctions between the branches of government are not always crystal clear. Despite this blending, and even if the power might be better exercised elsewhere, there is no constitutional violation if the court is exercising the questioned practice merely incidentally to its general duties and mission. Tweedy v. Oklahoma Bar Association, 624 P.2d 1049, 1053 (Okl.1981); State v. Juvenile Division, Tulsa County District Court, 560 P.2d 974, 975 (Okl.Cr.1977). The problem would arise if the Legislature should involve itself in matters which aré exclusively the province of the Judicial branch. Spitznas v. State, 648 P.2d 1271, 1274 (Okl.Cr.1982).
Here, the Legislature has dictated the imposition of an assessment in addition to other fines and costs that may be imposed on a defendant convicted of a criminal act. The imposition of the assessment is not central to the function of the courts of this state: it has no bearing on a determination whether the defendant is guilty or innocent; the amount of time the defendant should be imprisoned within the statutory guidelines, or whether the court exercises discretion in granting probation; how much fine he is to pay; or any other issue central to the administration of criminal justice in this state. It is clearly incidental to the primary function of the trial court sitting in a criminal matter. Since it is clearly incidental, and does not otherwise
The judgment of the trial court declaring
Notes
. That statute reads: “Every person convicted of a violation of the Uniform Controlled Dangerous Substance Act, Section 2-101 et seq. of this title, must be assessed for each offense a sum of not less than Five Hundred Dollars ($500.00) nor more than Three Thousand Dollars ($3,000.00). The assessment is in addition to and not in lieu of any fines, restitution costs, other assessments, or forfeitures authorized or required by law.” Subsection B provides the assessment must be collected in the same way as other fees and costs, and the money must be forwarded to the Department of Mental Health and Substance Abuse Services for deposit in the Drug Abuse Education and Treatment Fund, to be used only for drug abuse education, prevention and treatment services.
. Appellee did not respond on appeal in the same manner he argued at the hearing. Rather, his response consists entirely of a portion of a written opinion by a district judge in another county declaring unconstitutional not only
. A suspect classification is defined as one “saddled with such disabilities, or subjected to such a history of purposeful unequal treatment, or regulated to such a position of political powerlessness as to command extraordinary protection from the majoritarian political process.” San Antonio Independent School District v. Rodriguez, 411 U.S. 1, 28, 93 S.Ct. 1278, 1294, 36 L.Ed.2d 16 (1973).
. We are not required here to determine whether reconciliation, if any, of these statutes is necessary. It is sufficient to state at this juncture the Legislature has taken remedial action to address the concern raised in Coffelt concerning denial of access to the courts.
. We are dealing here with the fee in the limited posture of access to the courts. We make our determination based on the record before us, and subsequent statutory enactments which alleviated that portion of this. Courtis earlier concern. However, we do not preclude the possibility future fees could violate Constitutional concerns dealing with separation of powers. See footnote 7, infra.
. We note the statute assessing a victim’s compensation fee provides guidelines to determine the amount a defendant must pay: the severity of the crime; the prior criminal record; the ability of the defendant to pay; the economic impact of the assessment on the defendant‘s dependents.
See
. We feel compelled to insert this caveat: the separation-of-powers discussion is limited in scope to the issues presented on appeal. While we do not find an evidentiary basis to make such a declaration at this juncture, we do not preclude the possibility future enactments may be unconstitutional. Judge Brett’s dicta in
Coffelt
exploring the possibility the Legislative branch is abdicating its constitutional responsibility by designating the Judicial branch as a tax-gathering agency is well taken; and we recognize further imposition of collecting additional fees could at some point place such a burden on the court system that, when taken as a whole, they constitute an onerous burden which unconstitutionally interferes with the district court as it seeks to perform its central function of disposing of all justiciable matters and holding trials to determine the guilt or innocence of the defendant before it.
See