Hubbard v. State

• Decision Date: 21 February 2002
• Docket Number: No. F-2000-194., No. F-2000-638
• Citation: 2002 OK CR 8,45 P.3d 96
• Parties: Ray Lamont HUBBARD, Appellant, v. STATE of Oklahoma, Appellee. and Troy Don Cape, Petitioner, v. State of Oklahoma, Respondent.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

45 P.3d 96

2002 OK CR 8

Ray Lamont HUBBARD, Appellant, v. STATE of Oklahoma, Appellee. and Troy Don Cape, Petitioner, v. State of Oklahoma, Respondent.

Nos. F-2000-638, F-2000-194.

Court of Criminal Appeals of Oklahoma.

February 21, 2002.

Gerald Gibbs, Broken Bow, OK, Attorney for Defendant Hubbard, at trial.

Joe Watkins, Assistant District Attorney, Choctaw County Courthouse, Hugo, OK, Attorney for the State, at trial.

Kenneth E. Adair, Norman, OK, Attorney for Defendant Cape, at trial.

Jonathan Nichols, Assistant District Attorney, Cleveland County Courthouse, Norman, OK, Attorney for the State, at trial.

Cindy Brown Danner, Chief, General Appeals, Indigent Defense System, Norman, OK, Attorney for Appellant Hubbard, on appeal.

W.A. Drew Edmondson, Attorney General, Kellye Bates, Assistant Attorney General, Oklahoma City, OK, Attorneys for Appellee on appeal.

Katrina Conrad-Legler, Indigent Defense System, Norman, OK, Attorney for Appellant Cape, on appeal.

W.A. Drew Edmondson, Attorney General, Sandra D. Howard, Assistant Attorney General, Oklahoma City, Ok, Attorneys for Appellee on appeal.

SUMMARY OPINION

JOHNSON, Vice Presiding Judge.

¶ 1 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-1999-35, for Murder in the Second Degree, in violation of 21 O.S.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 430 days. On appeal, Hubbard challenges only the assessment of county incarceration costs against him.

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

¶ 3 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.

¶ 5 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.

¶ 6 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.

[T]he 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 conviction, 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, 1993 OK CR 4, ¶ 15, 848 P.2d 20, 24-25

(Crime Victims Compensation Act properly channeled sentencing court's discretion by enumerating factors relevant to assessment).

¶ 7 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, ¶ 2, 876 P.2d 690, 693. 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.

¶ 8 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.

¶ 9 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 sheriff's 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.

¶ 10 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 (30) days of this order, the respective district courts in these cases shall hold hearings to receive evidence from the county sheriff, pursuant to 22 O.S.Supp.1999, § 979a, 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 once 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, ¶ 9, 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...