Hubbard v. State , 45 P.3d 96 ( 2002 )

SUMMARY OPINION

JOHNSON, Vice Presiding Judge.

T1 Due to the similarity of the issues raised, we have consolidated these cases to address (1) whether the district courts' assessments of incarceration costs were arbitrary and capricious, and (2) whether the assessment of incarceration costs violates an indigent defendant's right to equal protection and due process, as guaranteed by the Fourteenth Amendment.

I. Hubbard v. State, F-2000-638

{2 Ray Lamont Hubbard was tried by a jury in Choctaw County District Court, Case No. CF-1999-85, for Murder in the Second Degree, in violation of 21 0.8.1991, § 701.8. The Honorable Willard Driesel, District Judge, presided at trial. The jury found Hubbard guilty of the lesser offense of Manslaughter in the First Degree, and set punishment at four years imprisonment. On May 2, 2000, the district court sentenced Hubbard in accordance with the jury's verdict. The court also ordered Hubbard to pay court costs of $2,193.88, $250.00 for his pre-sentence investigation report, $5,000.00 in victim's compensation, $1,500.00 in attorney fees, and $8,600.00 to the Choctaw County Jail for the cost of his incarceration prior to sentencing. The cost of incarceration was calculated at a rate of $20.00 per day, and Hubbard was incarcerated for 480 days. On appeal, Hubbard challenges only the assessment of county incarceration costs against him.

II. Cape v. State, C-2000-194

11 8 Troy Don Cape was charged with Actual Physical Control of a Vehicle While Intoxicated, After Former Conviction of Two or More Felonies, in violation of 47 O.S.Supp. 1998, § 11-902, in Cleveland County District Court, Case No. CF-1999-1060. On January 21, 2000, Cape pled guilty pursuant to a plea agreement with the State.¹ The Honorable Tom Lucas accepted his plea and sentenced Cape to six years imprisonment and assessed $1,650.00 in incarceration costs. That same day, Cape filed a motion to withdraw his plea of guilty, or in the alternative, to reconsider the assessment of incarceration costs and requested an evidentiary hearing. A hearing on Cape's motion was held on February 16, 2000. Cape challenged the assessment of incarceration costs on several grounds. The district court denied Cape's motion, and he filed this appeal.

4 Although phrased differently, Hubbard and Cape each raise the following propositions on appeal:

1. The trial court abused its discretion by arbitrarily assessing incarceration costs without following this Court's rules or adhering to the incarceration costs statute, and

2. The assessment of incarceration costs against an indigent defendant violates the equal protection and due process clauses of the Fourteenth Amendment.

T5 After thorough consideration of these propositions and the records before us on appeal, including the original records, transcripts, and briefs of the parties, we remand each case to the district court for evidentiary hearings for the reasons set forth below.

T6 A district court has jurisdiction to assess certain costs of prosecution on a convicted defendant. 28 O.S.1991, § 101. Title 22 O.S.Supp.1999, § 979a(A) extends the costs of prosecution to include the costs of detention in a city or county jail.

[The municipal attorney or district attorney shall ask the court to require a person confined in a city or county jail, for any offense, to pay the jail facility the costs of incarceration, both before and after convietion, upon conviction or receiving a deferred sentence. Costs of incarceration shall include booking, receiving and processing out, housing, food, clothing, medical care, dental care, and psychiatric services. The costs of incarceration shall be an amount equal to the actual cost of the services and shall be determined by the chief of police for city jails, and by the county sheriff for county jails.... The costs shall not be assessed if, in the judgment of the court, such costs would impose a manifest hardship on the person, or if in the opinion of the court the property of the person is needed for the maintenance and support of immediate family. ...

Id. The district court's discretion in assessing incarceration costs is limited to determining whether assessment would create a "manifest hardship" upon the defendant, or whether the defendant's financial responsibilities to his or her dependents would make restitution impracticable. Id. We cannot say that this limited discretion necessarily results in arbitrary assessments. Cf. Walters v. State, 1998 OK CR 4, 115, 848 P.2d 20, 24-25 (Crime Victims Compensation Act properly channeled sentencing court's discretion by enumerating factors relevant to assessment).

17 Because Hubbard did not object to the assessment of incarceration costs at sentencing, we review only for plain error. Simpson v. State, 1994 OK CR 40, 12, 876 P.2d 690, 698. In Hubbard's case, the district court properly considered whether assessment of incarceration costs would pose a manifest hardship to Hubbard or his dependents. The court found that Hubbard had the ability to pay based on his age, health, and work experience. The court also concluded that assessment of the costs would not impose a manifest hardship on Hubbard's dependents. We find no error in the district court's determination in this regard.

18 However, the district court did not follow the procedure provided in the statute for determining the costs of incarceration. At sentencing, the district judge indicated that he had stated before in open court that the cost of incarceration was $20.00 per day. The record does not establish how this figure was determined, or whether it was determined by the county sheriff as required by § 979a(A). We find this to be plain error, and therefore VACATE the amount of incarceration costs assessed with respect to Appellant Hubbard and REMAND this matter to the district court for an evidentiary hearing, where incarceration costs can be calculated in accordance with the applicable statute.

19 We reach a similar conclusion with respect to Appellant Cape. In Cape's case, the district court took judicial notice of a formula used by the county sheriff which, apparently, was based on one used by the United States Marshal's Service. While this procedure itself does not violate § 979a(A) because the county sheriff calculated the costs, there is no record evidence of the basis for the sheriffs calculation. We find this deviation from $ 979a(A) to be plain error, and therefore VACATE the amount of incarceration costs assessed against Appellant Cape and REMAND for an evidentiary hearing where the basis for the assessment can be presented.

110 This Court recognizes the burden that would ensue if an evidentiary hearing regarding incarceration costs were required at every defendant's sentencing proceeding. To avoid this unnecessary burden in the future, we hold the following:

1. Within thirty (80) days of this order, the respective district courts in these cases shall hold hearings to receive evidence from the county sheriff, pursuant to 22 0.8.8upp.1999, § 9792, reflecting the actual cost to the respective counties of the services provided in direct relation to the incarceration of Appellants Hubbard and Cape.

2. In all counties and municipalities, courts shall hold a hearing with the sheriff or chief of police to determine the average daily cost of incarceration in the particular jail, and shall issue an administrative order promulgating this information. This order shall be made readily available in each county or municipality, and shall be updated annually.² Courts may then take judicial notice of this information in assessing incarceration costs in subsequent cases.

3. Before incarceration costs are assessed in any particular case, the defendant shall be allowed to submit to the district court an affidavit regarding his present ability to pay, which the court shall consider in deciding whether assessment of these costs would impose a manifest hardship on him or his dependents. At the sentencing hearing the defendant must show, by a preponderance of evidence, that assessment of incarceration costs would create such a hardship. If the court does not so find, and assesses incarceration costs, the defendant's financial ability to pay these costs onee he is released from custody (or whenever the amount is otherwise due) remains subject to judicial review under the procedures outlined in this Court's Rules. See Rule 8.1, et seq., Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2001). See also McDonald v. State, 1988 OK CR 245, ¶17, 764 P.2d 202, 206; Armstrong v. State, 1987 OK CR 176, §5, 742 P.2d 565, 567; Jones v. State, 1984 OK CR 70, 19, 682 P.2d 757, 759.³

This procedure applies only to the assessment of costs for confinement in a county or municipal jail, or a private jail operated under contract with a county or municipality, pursuant to § 979a(A) of Title 22, Oklahoma Statutes.⁴

¶11 In so holding, we reject Appellants' assertions that the assessment of incarceration costs under § 9792 violates the Fourteenth Amendment guarantees of due process and equal protection. We begin with the presumption that the statute is constitutional, and place the burden on Appellants to demonstrate otherwise. Clayton v. State, 1995 OK CR 3, ¶15, 892 P.2d 646, 654. As for the due process argument, under the provisions of § 979a(A), the defendant has an opportunity to show why such costs should not be assessed against him in the first instance. Cf. Bearden v. Georgia, 461 U.S. 660, 672-78, 108 S.Ct. 2064, 2078, 76 L.Ed.2d 221 (1983) (defendant constitutionally entitled to a hearing before detention for failure to pay fines and restitution); Honeycutt v. State, 1992 OK CR 36, 135, 834 P.2d 993, 1000 (defendant entitled to a hearing on assessment of victim restitution under analogous statute). We find this procedure sufficient to give the defendant an opportunity to be heard on the issue.

112 As for the equal protection argument, Appellants must demonstrate that § 979a(A) either (1) impermissibly interferes with their exercise of a fundamental right, (2) operates to their peculiar disadvantage as members of a suspect class, or (8) is not rationally related to a legitimate state interest. Clayton, 1995 OK CR 3 at 117, 892 P.2d at 654. Appellants do not claim any fundamental constitutional right on the part of incarcerated defendants to have the costs of their imprisonment and supervision paid by taxpayers. Appellants likewise have failed to show that they are members of any historically suspect class. The narrow question before this Court, therefore, is whether requiring reimbursement from a convicted defendant for the costs of his incarceration bears some rational relationship to a legitimate state purpose. We believe it does.

{13 Appellants contend that because of their indigency, they are subjected to greater financial liability in a eriminal prosecution than a wealthier person who can afford to post bail. However, personal financial resources are only one factor determining whether an accused is confined prior to trial. The gravity of the offense, the accused's contacts in the community, his previous record, and his ability to receive assistance from friends and family are equally important factors, and are not related to indigeney. In some cases, bail may be denied regardless of the defendant's financial status. See Okl. Const. art. 2, § 8; Petition of Humphrey, 1979 OK CR 97, ¶14, 601 P.2d 103, 108. Furthermore, § 979a(A) permits the district court to waive incarceration costs in cases of manifest hardship. Recouping the costs of incarceration is of legitimate concern to state and local governments. Section 9792 is not designed to punish the poor; it is designed to hold accountable those who have the ability to repay these costs, and it ensures that a particular defendant will only be held accountable for the costs attributable to him. We conclude that a rational basis exists for the State, and political subdivisions thereof, to seek reimbursement for these costs.

DECISION

1 14 The Judgment and Sentences of both district courts with respect to costs of incarceration are VACATED and REMANDED for evidentiary hearings not inconsistent with this opinion.

LUMPKIN, P.J: concurs in part/dissents in part. CHAPEL, J.: concurs. STRUBHAR, J.; concurs. LILE, J.; concurs.

1 . Two other charges, Operating a Motor Vehicle While Under Suspension, Revocation or Cancellation, and Failure to Carry a Valid Security Verification Form in Vehicle, were dismissed.

2 . While many means of accomplishing this task are available, this Court recommends posting the administrative order in the county or city court clerk's office, and in the county or city jail.

3 . We find Cape's argument that his motion hearing resembled a "Rule 8" hearing unpersuasive. See DeRonde v. State, 1986 OK CR 29, 15, 715 P.2d 84, 87 (ability to pay is properly determined after release from incarceration); Rule 8.1 et seq., Rules of the Court of Criminal Appeals, Title 22, Ch. 18, App. (2001). Cape was not confined for willfully failing to pay incarceration costs. There is no right to appeal from a Rule 8 hearing until a final order of confinement, resulting from a defendant's willful failure to pay, has been entered.

4 . We note that recent amendments to § 979a(A) contemplate costs of incarceration in private facilities operated under- contract with a political subdivision. See 22 0.$.2001, § 979a(A).