State v. BlankState v. Blank
Defendants Blank and LeBlanc raise numerous challenges to the constitutionality of
On July 29, 1993, Petitioner Blank was convicted of second degree manslaughter.
Appellant LeBlanc was convicted on November 19, 1992, of four counts of armed robbery and he was sentenced to concurrent terms of 120 months’ confinement on each count. He was also ordered to pay court costs, a victim assessment, and restitution. The court found LeBlanc indigent, and his appeal was therefore at public expense, including court appointed counsel. Division One of the Court of Appeals affirmed LeBlanc‘s conviction on August 21, 1995.2 The State filed a timely cost bill pursuant to
In each of these cases, Defendants’ appeals were pending when
Statutes are presumed to be constitutional. State v. Hennings, 129 Wash.2d 512, 524, 919 P.2d 580 (1996). A party challenging the constitutionality of a statute has the heavy burden of proving its unconstitutionality beyond a reasonable doubt. Id. at 524, 919 P.2d 580; State v. Ward, 123 Wash.2d 488, 496, 869 P.2d 1062 (1994). Defendants in these cases have the burden of proving any unconstitutionality of
In Fuller, the Court upheld an Oregon statute which required convicted defendants, as a condition of probation, to reimburse the cost of appointed counsel which had been provided because of indigency, where the defendant subsequently acquired the means to do so. The statute, the Court observed, did not make repayment mandatory. Repayment could be imposed only on a convicted defendant who “is or will be able” to pay. Fuller, 417 U.S. at 45, 94 S.Ct. at 2120-21. Further, the statute provided that the appellate court had to take into account the defendant‘s financial resources and the burden that payment would impose, and no repayment obligation could be imposed if there were no likelihood the defendant‘s indigency would end. The statute allowed the defendant to petition at any time for remission of the costs or any unpaid portion. Finally, the statute provided that no convicted person could be held in contempt for failure to repay if he showed that his default was not intentional nor the result of a failure to make a good faith effort to pay. Fuller, 417 U.S. at 46, 94 S.Ct. at 2121.
In upholding the statute, the Court noted that it did not suffer from infirmities identified in James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972), where the Court relied on equal protection grounds to invalidate a recoupment statute which expressly denied exemptions to criminal defendants which were available in the case of civil judgment debtors. Fuller, 417 U.S. at 46-48, 94 S.Ct. at 2121-22. The Court also rejected the argument that the Oregon statute violated equal protection by discriminating between those defendants who are convicted and thоse who are not. The Court concluded that given the unavoidable dislocations and hardships which an acquitted defendant must undergo, Oregon‘s decision that he be free of liability to reimburse the state for the costs of his defense reflected a rational effort to achieve elemental fairness. Id. at 50, 94 S.Ct. at 2123.
The Court also rejected the argument that the Oregon statute violated the right to counsel because a defendant‘s knowledge that he might have to repay his legal representation expenses might cause him to decline appointed counsel, thus chilling his right to counsel. The Court reasoned that under Oregon‘s scheme the defendant is entitled to free counsel when he needs it, and the fact that he knows he may have to repay the costs of the services does not affect his eligibility to obtain counsel.
We live in a society where the distribution of legal assistance, like the distribution of all goods and services, is generally regulated by the dynаmics of private enterprise. A defendant in a criminal case who is just above the line separating the indigent from the nonindigent must borrow money, sell off his meager assets, or call upon his family or friends in order to hire a lawyer. We cannot say that the Constitution requires that those only slightly poorer must remain forever immune from any obligation to shoulder the expenses of their legal defense, even when they are able to pay without hardship.
... Unlike the statutes found invalid ... where the provisions `had no other purpose or effect than to chill the assertion of constitutional rights by penalizing those who choose to exercise them,\’ ... Oregon\‘s recoupment statute merely provides that a convicted person who later becomes able to pay for his counsel may be required to do so. Oregon\‘s legislation is tailored to impose an obligation only upon those with a foreseeable ability to meet it, and to enforce that obligatiоn only against those who actually become able to meet it without hardship.
Fuller, 417 U.S. at 53-54, 94 S.Ct. at 2124-25.
In Curry, this court considered a challenge brought under
1. Repayment must not be mandatory;
2. Repayment may be imposed only on convicted defendants;
3. Repayment may only be ordered if the defendant is or will be able to pay;
4. The financial resources of the defendant must be taken into account;
5. A repayment obligation may not be imposed if it appears there is no likelihood the defendant‘s indigency will end;
6. The convicted person must be permitted to petition thе court for remission of the payment of costs or any unpaid portion;
7. The convicted person cannot be held in contempt for failure to repay if the default was not attributable to an intentional refusal to obey the court order or a failure to make a good faith effort to make repayment.
Curry, 118 Wash.2d at 915-16, 829 P.2d 166.
LeBlanc maintains that
While some courts have reasoned that a recoupment statute itself must expressly contain those conditions rendering it constitutional, e.g., Fitch v. Belshaw, 581 F.Supp. 273 (D.C.Or.1984) (addressing different Oregon recoupment statute than that at issue in Fuller), we have already acknowledged that a recoupment order may be entered in the absence of a statute expressly containing all the necessary procedural safeguards, provided that constitutionally necessary features of a recoupment structure are in place. In State v. Barklind, 87 Wash.2d 814, 557 P.2d 314 (1976), the trial court‘s order granted a convicted defendant probation conditioned on repayment of the cost of appointed trial counsel, even though the statute permitting monetary assessments as conditions of probation did not contain the guidelines listed in Curry, and
We similarly conclude that thе procedural guidelines required by the Constitution, and mandated by this court, need not be specifically enumerated in the statute so long as the courts adhere to those requirements.
The second question raised by LeBlanc‘s argument is whether all of the features listed in Curry are in fact constitutionally necessary.
Specifically, we reconsider whether, prior to including a repayment obligation in defendant‘s judgment and sentence, it is constitutionally necessary that there be an inquiry into the defendant‘s ability to pay, his or her financial resources, and whether there is no likelihood that defendant‘s indigency will end. A number of courts have, as this court
Several state courts have concluded that a prior determination of defendant‘s ability to pay is not constitutionally required. E.g., State v. Albert, 899 P.2d 103 (Alaska 1995); State v. Kottenbroch, 319 N.W.2d 465 (N.D. 1982); Basaldua v. State, 558 S.W.2d 2 (Tex.Crim.App.1977). In Kottenbroch, for example, the court reasoned that while the recoupment statute at issue appeared to be mandatory, the statute was constitutional when construed to require that probation could not be revoked for failure to pay without the court finding that the probationer was capable of repaying the costs of his defense but was unwilling to do so. Kottenbroch, 319 N.W.2d at 473. In Basaldua, 558 S.W.2d at 7, the court similarly upheld a recoupment statute under its previous decisions that probation could not be revoked for failure to pay such costs unless the State showed the probationer was able to pay the costs but intentionally failed to do so.
Federal courts have also reasoned that costs of prosecution may be imposed upon a defendant who is indigent at the time of sentencing, but later acquires the means to pay. In United States v. Hutchings, 757 F.2d 11 (2d Cir.1985), for example, the court held that costs of prosecution under
Moreover, in other contexts, courts have held that monetary assessments which are mandatory may be imposed against indigent defendants at the time of sentencing without any per se constitutional violation. For example, in Curry this court addressed, in addition to the issue whether formal written findings were required before ordering recoupment, a challenge to imposition of a mandatory victim penalty assessment required by
“[c]onstitutional principles will be implicated... only if the government seeks to enforce collection of the assessments `“at a time when [the defendant is] unable, through no fault of his own, to comply.“\‘...
“... It is at the point of enforced collection..., where an indigent may be faced with the alternatives of payment or imprisonment, that he “may assert a constitutional objection on the ground of his indigency.”
Curry, 118 Wash.2d at 917, 829 P.2d 166 (alterations in original) (quoting State v. Curry, 62 Wash.App. 676, 681-82, 814 P.2d 1252 (1991) (quoting United States v. Pagan, 785 F.2d 378, 381-82 (2d Cir.) cert. denied, 479 U.S. 1017, 107 S.Ct. 667, 93 L.Ed.2d 719 (1986))). The court observed that the United States Supreme Court has held that it is fundamentally unfair to imprison defendants solely because of inability to pay court ordered fines, citing among other cases Bearden v. Georgia, 461 U.S. 660, 667-68, 103 S.Ct. 2064, 2070, 76 L.Ed.2d 221 (1983). Curry, 118 Wash.2d at 918, 829 P.2d 166. However, “`nothing ... precludes a judge from imposing on an indigent, as on any defendant, the maximum penalty prescribed by law[.]\‘” Curry, 118 Wash.2d at 918 n. 3, 829 P.2d 166 (quoting Williams v. Illinois, 399 U.S. 235, 243, 90 S.Ct. 2018, 2023, 26 L.Ed.2d 586 (1970)). A “`defendant\‘s poverty in no way immunizes him from punishment.\‘” Curry, 118 Wash.2d at 918 n. 3, 829 P.2d 166 (quoting Bearden, 461 U.S. at 669, 103 S.Ct. at 2071).
This court concluded in Curry that sufficient safeguards existed to prevent imprisonment
As noted,
Moreover, common sense dictates that a determination of ability to pay and an inquiry into defendant‘s finances is not required before a recoupment ordеr may be entered against an indigent defendant as it is nearly impossible to predict ability to pay over a period of 10 years or longer.6 However, we hold that before enforced collection or any sanction is imposed for nonpayment, there must be an inquiry into ability to pay.
LeBlanc also contends that feature 2 listed in Curry is not satisfied by
Defendants argue that application of
A statute which imposes an obligation to pay the costs of court appointed counsel without opportunity for a hearing in which defendant may dispute the amount assessed or the ability to repay, and which lacks any procedure to request a court for remission of payment violates due procеss. Fitch v. Belshaw, 581 F.Supp. 273 (D.C.Or.1984).
The Iowa State Supreme Court held that lack of notice of a repayment obligation or the opportunity to provide input into the selection of court appointed counsel and the cost of legal service did not violate fundamental principles of justice. State v. Haines, 360 N.W.2d 791 (Iowa 1985). The court reasoned that the state scheme insured that counsel was available to the defendant at the time it was needed, and that only after a conviction and a determination of ability to pay, despite indigency at an earlier time, was a criminal defendant required to pay. A defendant unable to pay would not be obliged to. The lack of notice is not basically unfair, the court reasoned, because defendant had counsel appointed to advise him when needed, and reimbursement could be ordered only after a hearing. Id. at 796. Other courts have held that due process is not violated by lack of a hearing before imposition of a repayment obligation for costs of court appointed counsel, where a hearing was required before probation could be revoked due to nonpayment, in order to determine whether the defendant was able, but unwilling, to pay. State v. Kottenbroch, 319 N.W.2d 465, 473 (N.D.1982); State v. McLean, 87 Ohio App.3d 392, 622 N.E.2d 402, 404 (1993).
We agree with these courts that it is not fundamentally unfair to impose a repayment obligation without notice and an opportunity to be heard prior to the decision to appeal, provided that before enforced payment or sanctions for nonpayment may be imposed, there is an opportunity to be heard regarding ability to pay.
LeBlanc argues that equal protection is violated as a result of lack of notice of a possible repayment obligation because unlike nonindigent defendants, he was not allowed to control the scope of his debt. He does not explain which of three tests apply to determine whether there is an equal protection violation, see generally State v. Thorne, 129 Wash.2d 736, 770-71, 921 P.2d 514 (1996), and his challenge is inadequately presented. In any event, the legislative classification he seems to identify is between defendants who “are not allowed” to control the cost of their appeal because they lack notice of a potential repayment obligation and defendants who
LeBlanc also argues
In contrast to the statute at issue in Giaccio,
Defendants also argue that
Although Eide has not been overruled, its precedential value has been seriously eroded. The court in Eide relied upon the dissenting opinion in the Oregon Court of Appeals decision in State v. Fuller, 12 Or.App. 152, 504 P.2d 1393 (1973), a view that did not prevail when the United States Supreme Court decided the case, as well as certain ABA standards predating Fuller, and reasoning in a California case, In re Allen, 71 Cal.2d 388, 78 Cal.Rptr. 207, 455 P.2d 143 (1969), which was expressly disapproved in Fuller. As this court recognized in State v. Hess, 86 Wash.2d 51, 53, 541 P.2d 1222 (1975), Eide‘s reasoning is undercut by Fuller.
Moreover, we have already explained that ability to pay must be assessed before enforced payment or sanctions are imposed for nonpayment. See State v. Kottenbroch, 319 N.W.2d 465 (N.D.1982) (based upon Fuller, there is no unconstitutional chilling of the right to counsеl under a recoupment statute which mandates imposition of a condition of probation requiring defendant to repay the cost of appointed counsel; probation could not be revoked for nonpayment unless there
fact that an indigent who accepts state-appointed legal representation knows that he might someday be required to repay the costs of these services in no way affects his eligibility to obtain counsel. The Oregon statute is carefully designed to insure that only those who actually become capable of repaying the State will ever be obliged to do so. Those who remain indigent or for whom repayment would work “manifest hardship” are forever exempt from any obligation to repay.
Fuller, 417 U.S. at 53, 94 S.Ct. at 2124 (footnote omitted). Similarly, a defendant‘s right to appeal at public expense is provided when needed.
Next, Defendants argue that
Defendants argue the statute creates a new liability which did not exist when they made their decisions to appeal and they were found indigent and entitled to appeal at public expense. Thеy maintain that due process and equal protection rights to notice that they might have to pay appellate costs are violated if
We do not agree that applying
Moreover, we agree with the Court of Appeals that
RCW 10.73.160 [is not] substantive. It does not create a new right to attorney‘s fees, as Blank suggests, and it does not take away a vested right. It does not affect Blank‘s right of appeal, or his right to public funds to finance it, if he is indigent. He does not have, and never did have, a right to an appeal at public expense, if he can afford to pay for that appeal. The statute simply provides a mechanism for recouping the funds advanced to ensure his right of appeal. It is clearly procedural. See Mackey v. American Fashion Inst. Corp., 60 Wash.App. 426, 430, 804 P.2d 642 (1991).
State v. Blank, 80 Wash.App. 638, 641-42, 910 P.2d 545, review denied, 129 Wash.2d 1017, 917 P.2d 576 (1996).
Applying
Defendants maintain that if
Defendants also maintain the State is entitled to costs in neither of these cases because it failed to comply with
We agree with the State that defense expenses which may be recouped under
Blank next argues that the State‘s representative, the county prosecuting attorney, is not an “actual party” entitled to recoup fees actually incurred by the Appellate Indigent Defense Fund (AIDF). Blank reasons that therefore only costs of prosecution can be recouped. He cites State v. Kuhn, 74 Wash.App. 787, 875 P.2d 1225 (1994), review denied, 127 Wash.2d 1017, 904 P.2d 299 (1995) and State v. Rogers, 127 Wash.2d 270, 280, 898 P.2d 294 (1995). Both of these cases rest on
Although
We likewise reject LeBlanc‘s argument that the State has waived its opportunity to contest his indigency by failing to object to LeBlanc‘s pursuit of appeal at public expense and failing to present any evidence to contradict the trial court‘s finding that LeBlanc is indigent. The State‘s request for appellate costs under
In the alternative, LeBlanc maintains that even if
If in the future repayment will impose a manifest hardship on defendant, or if he is unable, through no fault of his own, to repay, the statute allows for remission of the costs award. There is no reason at this time to deny the State‘s cost request based upon speculation about future сircumstances. As to LeBlanc‘s argument about justification for recouping costs, the argument is misdirected. As the Court observed in James v. Strange, 407 U.S. 128, 134, 92 S.Ct. 2027, 2031, 32 L.Ed.2d 600 (1972), when addressing a Kansas recoupment statute which had in two years resulted in negligible recovery compared to expenditures, the court‘s task is not to weigh the effectiveness of the statute but its constitutionality, and “[w]hether the returns under the statute justify the expense, time, and efforts of state officials is for the ongoing supervision of the legislative branch.”
LeBlanc has failed to offer any compelling argument justifying denial of the State‘s costs request.
DURHAM, C.J., and DOLLIVER, SMITH, GUY, and TALMADGE, JJ., concur.
ALEXANDER, Justice (dissenting).
In my judgment, the majority inappropriately gives retroactive application to
The majority concedes that “[a]bsent contrary legislative intent, statutes are presumed to operate prospectively only.” Adcox v. Children‘s Orthopedic Hosp., 123 Wash.2d 15, 30, 864 P.2d 921 (1993). An exception to this rule exists if the statute is remedial and does not affect a substantive or vested right. Miebach v. Colasurdo, 102 Wash.2d 170, 180-81, 685 P.2d 1074 (1984).
In determining whether or not a statute operates prospectively or retroactively, it is critical to determine the event that precipitates application of the statute. If the triggering event occurs after the statute‘s effective date, the statute is deemed to operate prospectively. That is so even if the event has its origin in a situation that existed “prior to the enactment of the statute.” State v. Belgarde, 119 Wash.2d 711, 722, 837 P.2d 599 (1992) (quoting Aetna Life Ins. Co. v. Washington Life & Disab. Ins. Guar. Ass‘n, 83 Wash.2d 523, 535, 520 P.2d 162 (1974)). If, however, the precipitating event occurs before the effective date of the statute, the statute is ineffective as to that event unless the statute can properly be applied retroactively. See Macumber v. Shafer, 96 Wash.2d 568, 637 P.2d 645 (1981).
In my judgment, the majority incorrectly concludes that the events that precipitate application of
Furthermore, the majority‘s determination that the events that precipitated application of
Like the situation in Estate of Burns, the benefits Blank and LeBlanc received, which arguably gave rise to their “contingent indebtedness,” were acquired before the statute
The majority reasons that it has not retroactively applied
The majority correctly notes that a statute may be retroactively applied if it is remedial in nature, and that a statute is remedial when it relates to practice, procedure, or remedies, and does not affect a substantive or vested right.
Lastly, it seems apparent to me that the majority opinion runs afoul of Blank‘s and LeBlanc‘s guaranty of due process of law under the Fifth and Fourteenth Amendments to the United States Constitution and
Although we did not reach the due process issue in Estate of Burns, 131 Wash.2d 104, 928 P.2d 1094 (1997), we did point out the obvious inequity of burdening persons with the new legal consequences of statutes passed after the fact, stating, “[e]lementary considerations of fairness dictate that individuals should have an opportunity to know what the law is and to conform their conduct accordingly.” Estate of Burns, at 110, 928 P.2d 1094 (citing Landgraf v. USI Film Prods., 511 U.S. 244, ___, 114 S.Ct. 1483, 1497, 128 L.Ed.2d 229 (1994)). We reasoned there that application of the statute was inappropriate because it deprived the recipients of the medical benefits of “thе opportunity to decide whether to accept benefits based upon knowledge of reimbursement requirements.” Estate of Burns, at 118, 928 P.2d 1094. Here, by allowing the State to recoup costs incurred before the effective date of the statute authorizing recoupment, the majority essentially ignores the fact that Blank and LeBlanc did not have an opportunity to make an informed decision about whether to accept court appointed counsel or to pursue their appeals without benefit of counsel.
I would reverse.
SANDERS and JOHNSON, JJ., concur.