868 P.2d 738 (Okla.Crim.App. 1994), S-91-769, State v. Ballard

Docket NºS-91-769.
Citation868 P.2d 738
Party NameSTATE of Oklahoma, Appellant, v. Steve G. BALLARD, Appellee.
Case DateFebruary 08, 1994
CourtCourt of Appeals of Oklahoma, Court of Criminal Appeals of Oklahoma

Page 738

868 P.2d 738 (Okla.Crim.App. 1994)

STATE of Oklahoma, Appellant,

v.

Steve G. BALLARD, Appellee.

No. S-91-769.

Court of Criminal Appeals of Oklahoma.

February 8, 1994.

Page 739

[Copyrighted Material Omitted]

Page 740

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.

Page 741

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...

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