State v. Ballard, S-91-769

• Decision Date: 08 February 1994
• Docket Number: No. S-91-769,S-91-769
• Citation: 868 P.2d 738
• Parties: STATE of Oklahoma, Appellant, v. Steve G. BALLARD, Appellee.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Criminal Appeals of Oklahoma

Page 738

868 P.2d 738

STATE of Oklahoma, Appellant, v. Steve G. BALLARD, Appellee.

No. S-91-769.

Court of Criminal Appeals of Oklahoma.

Feb. 8, 1994.

An Appeal on a Reserve Question of Law from the District Court of Comanche County; Jack Brock, District Judge.

John P. Zelbst, Lawton, at trial, and on appeal, for appellant.

Robert Schulte, Dist. Atty., Lawton, at trial, Neil Whittington, Asst. Dist. Atty., Lawton, on appeal, for the State.

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 63 O.S.Supp.1990, § 2-503.2 is unconstitutional. ¹ Appeal is allowable under 22 O.S.Supp.1990, § 1053 and 22 O.S.1981, § 1053.1. We reverse the judgment of the district court, and hold that the complained-of statute is constitutional.

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 63 O.S.Supp.1990, § 2-503.2 was unconstitutional. He did not file a brief arguing the unconstitutionality of the statute, nor did the prosecution file a brief defending the statute's constitutionality or argue for the statute at the sentencing hearing. The trial court did not issue a written order other than a notation in Appellee's judgment and sentence that the section was unconstitutional. However, based on the transcript of the sentencing hearing, we conclude Appellee advanced the following arguments during the hearing: the assessment is punitive in nature; it violates equal protection, because an indigent person may not be able to pay the assessment when it is due, and because the assessment is borne only by those convicted of drug-related crimes; there is no rational relationship between the assessment and the services rendered by the Department of Mental Health; and there are no guidelines a sentencing court can follow to determine the amount an individual defendant must pay. ²

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.

When equal protection is advanced contesting a statute's constitutionality, this Court analyzes the statute to determine if it impermissibly interferes with the exercise of a fundamental right or operates to the disadvantage of a suspect classification. State v. Pratt, 816 P.2d 1149, 1152 (Okl.Cr.1991) (citing Swart v. State, 720 P.2d 1265, 1268 (Okl.Cr.1986)). If a suspect classification is involved, our analysis of the statute requires strict scrutiny; if not, there need be only a "rational relationship" to a legitimate state interest. Id. No party has cited, and this Court is unable to find, any authority showing a person convicted of a crime, without more, is in a suspect classification. ³ Thus, our inquiry is limited to whether there is a rational basis for the Legislature's imposition of the assessment. We hold there is.

Subsection (B) of § 2-503.2 directs money collected pursuant to the statute must go to a special fund administered by the Department of Mental Health and Substance Abuse Services; and the money may be used only for "drug abuse education, prevention and treatment services." We see a rational relationship between imposing an additional assessment on those convicted of drug-related crimes and use of that money to go towards educating and helping others who may have or are likely to become involved with controlled dangerous substances. In addition, it is only fair that those who help create the problem should bear some of the costs of trying to alleviate it in themselves or others. We reject this equal protection argument, and use the same rationale to reject the argument there is no rational basis for the assessment.

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," 28 O.S.1981 § 101, and we believe the assessment complained of here falls into the category of "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. Section 101 of title 28, read in connection with the assessment, places the defendant in the same position as any other judgment debtor. In addition, Rule VIII, Rules of the Court of Criminal Appeals, provide the procedure to be followed if a person is unable to pay. See also 22 O.S.1991, § 983. ⁴ He is therefore not singled out for unequal treatment based on his indigency.

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 Coffelt, 93 Okl.Cr. 343, 228 P.2d 199, 202-03 (1951). However, we note 28 O.S. § 101 at the time of these holdings did not make provisions for an indigent defendant who did not have the money to pay. See 28 O.S.1951, § 101. We believe in light of the statutory changes discussed above, those cases effectively have been overruled, and we explicitly do so here to the extent they conflict with the analysis set forth above. ⁵

In light of our interpretation of the assessment fee in connection with 28 O.S.1981, § 101, the question concerning whether the assessment should be considered a punishment becomes moot; it is defined as such upon conviction.

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 disagre...