State v. Albert
| Decision Date | 23 June 1995 |
| Docket Number | No. S-5754,S-5754 |
| Citation | 899 P.2d 103 |
| Parties | STATE of Alaska, Appellant, v. Benjamin ALBERT, Appellee. |
| Court | Alaska Supreme Court |
Marilyn May, Asst. Atty. Gen., Anchorage, Charles E. Cole, Atty. Gen., Juneau, for appellant.
Susan Orlansky, Delaney, Wiles, Hayes, Reitman & Brubaker, Inc., Anchorage, for appellee.
Scott A. Brandt-Erichsen, Asst. Mun. Atty., Richard L. McVeigh, Mun. Atty., Anchorage, for amicus curiae Municipality of Anchorage.
Before MOORE, C.J., RABINOWITZ, MATTHEWS, COMPTON, JJ., and BRYNER, J. Pro Tem. *
In Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963), the United States Supreme Court held that in state criminal prosecutions "counsel must be provided for defendants unable to employ counsel" because of indigency. 372 U.S. at 340, 83 S.Ct. at 794. Gideon, however, did not address the subject of whether states could attempt to recover from indigent defendants some of the costs of providing counsel to them. Currently, all states and the federal government have some type of cost recoupment system. 1 Consolidated cases presently before this court challenge Alaska's recoupment system.
Alaska's system is set forth in AS 18.85.120(c), Alaska Criminal Rule 39, and Alaska Appellate Rule 209(b). See Appendix A. In brief, AS 18.85.120(c) authorizes the court, upon a person's criminal conviction, to enter a civil judgment against "a person for whom counsel is appointed ... for services of representation and court costs." It provides that upon a showing of financial hardship, the court shall order payment in installments. Remission, reduction or deferral of the judgment can be ordered. AS 18.85.120(c). Payment is made to the state general fund. Id. Criminal Rule 39 and Appellate Rule 209(b) set forth procedures which implement the recoupment system.
Under Criminal Rule 39, when an indigent person who has been represented by court- appointed counsel is convicted, the court issues a notice of intent to enter judgment for the cost of appointed counsel calculated in accordance with a schedule set out in subsection (d). Alaska R.Crim.P. 39(c)(1)(A). The scheduled fees are significantly lower than those charged by private counsel, ranging downward from the maximum of $5,000 for trial of a first or second degree murder charge. Upon receipt of a notice of intent to enter judgment, a defendant may oppose entry of judgment; if opposition is filed, a hearing may be held. 2 Alaska R.Crim.P. 39(c)(1)(C). The schedule of fees may be varied "for good cause shown" by either the prosecuting authority or the defendant, in which case actual costs and expenses will be assessed. Alaska R.Crim.P. 39(d).
If a recoupment judgment is entered, it has the same force and effect as a judgment in a civil action, Alaska R.Crim.P. 39(c)(2)(A), and proceedings to enforce the judgment are the same as those applicable to civil judgments. 3 The judgment is not enforceable by contempt, payment of the judgment may not be a condition of the defendant's probation, and failing to pay the judgment does not affect the services available to the defendant from appointed counsel on appeal "or any other phase of a defendant's case in any way." Alaska R.Crim.P. 39(c)(2)(B).
A defendant does not have the right to be represented by court-appointed counsel in connection with proceedings related to the notice of intent to enter the recoupment judgment, or to the collection of the judgment. Alaska R.Crim.P. 39(c)(2)(B). On a showing of financial hardship, the court shall order payment in installments. It may order remission, reduction or deferral of the unpaid portion of the judgment. Alaska R.Crim.P. 39(c)(2)(C).
Alaska residents are entitled to an annual permanent fund dividend. 4 AS 43.23.005. Recently the dividend has been in excess of $900. In recognition of this income source shared by all Alaskans, Criminal Rule 39(c)(1)(A) authorizes the court to order a convicted defendant to apply for a permanent fund dividend for every year in which the defendant qualifies for a dividend until the judgment is paid in full. A defendant may be held in contempt of court if the defendant does not comply with this order. Alaska R.Crim.P. 39(c)(2)(D).
Appellate Rule 209 is similar to Criminal Rule 39. At the conclusion of appellate procedures, if the conviction of a defendant who is represented by appointed counsel is not reversed, the clerk shall serve the defendant with a notice which sets out the amount of the judgment which may be entered against the defendant. Alaska R.App.P. 209(b)(6). The amount is calculated according to a schedule designed to charge substantially less than fees charged by private counsel for the same services. The fees range downward from $2,000 for a combined merit and sentence appeal. Alaska R.App.P. 209(b)(7). The defendant has a right to oppose entry of the judgment. Alaska R.App.P. 209(b)(6). A judgment entered under Appellate Rule 209, like a Criminal Rule 39 judgment, is collectible in the same manner as an ordinary civil judgment. Alaska R.App.P. 209(b)(6).
Recoupment judgments are subject to the exemptions on execution and garnishment applicable to other civil judgments as specified in the Alaska Exemption Act, AS 09.38.010-.510. This act is designed to ensure that debtors can maintain "a certain basic level of economic vitality" and live "in reasonable comfort." Gutterman v. First Nat'l Bank of Anchorage, 597 P.2d 969, 970, 972 (Alaska 1979). The exemptions provided include an exemption of net weekly earnings of $402.50 for an individual 5 and $632.50 for a head of household, 6 a homestead exemption of $62,100, 7 and exemptions for motor vehicles ($3,450), trade tools ($3,220), jewelry ($1,150) and household goods ($3,450). 8 Unmatured life insurance and annuity contracts are exempt up to $11,500, and retirement plans are exempt without limit. 9 The annual permanent fund dividend is not exempt with respect to child support, restitution in criminal cases, or debts owed the state. 10
I. PROCEEDINGS BELOW
On May 3, 1993, in State v. George, No. 4FA-S93-230 Cr. (Alaska Dist.Ct., May 3, 1993), a case in which court-appointed counsel was defending an indigent, Judge Charles Pengilly of the District Court for the Fourth Judicial District, sua sponte declared Criminal Rule 39 unconstitutional. 11 Judge Pengilly held that the rule violates the indigent defendant's rights (1) to counsel under the Sixth and Fourteenth Amendments to the United States Constitution and article I, section 11 of the Alaska Constitution; (2) to a jury trial in civil cases under article I, section 16 of the Alaska Constitution; and (3) to equal protection under article I, section 1 of the Alaska Constitution. The State appealed this order to the superior court and the appeal was transferred to this court by order of July 2, 1993.
On June 1, 1993, in State v. Albert, No. 4FA-S89-3009 Cr. (Alaska Super., June 1, 1993), another case in which an indigent was defended by court-appointed counsel, Superior Court Judge Mary Greene declared Criminal Rule 39 unconstitutional for the reasons set forth by Judge Pengilly in George. The State appealed. Numerous additional cases followed the same pattern. We ordered that all appeals from orders declaring Criminal Rule 39 unconstitutional be consolidated with the Albert appeal, whether they arise from the district court or the superior court, and designated Albert as the lead case on appeal. We appointed counsel for appellees to brief and present oral argument on each of the three points on which Judge Pengilly relied.
II. RIGHT TO COUNSEL
The Sixth Amendment to the United States Constitution provides: "In all criminal prosecutions, the accused shall enjoy the right ... to have the assistance of counsel for his defense." This right applies to the states, requiring them to provide counsel for indigent defendants in criminal cases. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963). The Alaska Constitution contains a cognate provision: "In all criminal prosecutions, the accused shall have the right ... to have the assistance of counsel for his defense." Alaska Const. art. I, § 11.
Judge Pengilly ruled that Criminal Rule 39 violates the right to counsel, guaranteed by the Sixth Amendment and article I, section 11 of the Alaska Constitution, because it is not " 'carefully designed' to 'take into account the ability to pay of a defendant who had been furnished counsel.' " Decision at 10. Judge Pengilly distilled the requirement that ability to pay be taken into account from the only two Supreme Court cases which have reviewed defense cost recovery systems James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972), and Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974), and from several lower court decisions.
At issue in James was the constitutionality of a Kansas recoupment statue under which civil judgments were entered against defendants for the amount expended in their defense. The recoupment judgment debtors were not accorded any of the exemptions provided other judgment debtors, except for a homestead exemption. At the outset the James court noted that the Kansas system was one of many state recoupment systems and that such systems differed significantly in their particular characteristics. In view of these differences, the Court observed that "any broadside pronouncement on their general validity would be inappropriate." Id. at 133, 92 S.Ct. at 2030. The Court noted that the district court had invalidated the Kansas law on the basis that it " 'needlessly encourages indigents to do without counsel and consequently infringes on the right to counsel as explicated in Gideon v. Wainwright.' " Id. at 134, 92 S.Ct. at 2031. The Court approached this rationale with skepticism, observing that there was no denial of the right to counsel "in the strictest sense" for "Kansas has enacted laws both to provide and...
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