State v. Earls, 8554-6-III
| Decision Date | 19 April 1988 |
| Docket Number | No. 8554-6-III,8554-6-III |
| Citation | 51 Wn.App. 192,752 P.2d 402 |
| Parties | STATE of Washington, Respondent, v. Kelly James EARLS, aka James Kelly Earls, Appellant. |
| Court | Washington Court of Appeals |
Daniel Arnold, Richland, for appellant.
Andrew Miller, Pros. Atty., Kennewick, for respondent.
Kelly James Earls appeals that part of his sentence ordering repayment of attorney fees and costs. We reverse in part and remand to the trial court.
Mr. Earls was charged in Benton County with first degree murder. Prior to trial, he offered to plead guilty to second degree murder. The State declined his offer. Because Mr. Earls was indigent, the court ordered counsel be provided him at the County's expense. Based upon the complexity of the case, the court also allowed Mr. Earls' court-appointed attorney to associate a private attorney to assist him. The association of the private attorney was also at County expense. After a trial and conviction of murder in the second degree, Mr. Earls was sentenced to 178 months in the state penitentiary.
At sentencing, the court also ordered Mr. Earls to pay the County his attorney fees in the amount of $6,125.90, and court costs in the amount of $2,608.43. He appeals the assessment of costs and attorney fees.
RCW 10.01.160 is controlling. It was enacted by the Legislature in 1976 and is identical to the Oregon statute upheld in Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974); see 1971 Or.Laws, ch. 743, §§ 80-82, now codified as Or.Rev.Stat. §§ 161.665, 161.675, 161.685 (1971). It provided:
(1) The court may require a convicted defendant to pay costs.
(2) Costs shall be limited to expenses specially incurred by the state in prosecuting the defendant. They cannot include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law. Expenses incurred for serving of warrants for failure to appear may be included in costs the court may require a convicted defendant to pay.
(3) The court shall not sentence a defendant to pay costs unless the defendant is or will be able to pay them. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.
Former RCW 10.01.160(1)-(3). 1
The history of RCW 10.01.160 indicates the Legislature enacted it to satisfy state and federal constitutional requirements. Prior to the adoption of RCW 10.01.160, et seq., in 1976, the Supreme Court held that without safeguards against arbitrary or oppressive assessment, recoupment of the cost of appointed counsel from criminal defendants as a condition of probation, violates an indigent defendant's right to counsel. State v. Hess, 86 Wash.2d 51, 541 P.2d 1222 (1975); State ex rel. Brundage v. Eide, 83 Wash.2d 676, 521 P.2d 706 (1974). Subsequent to the enactment of the statute, the court in State v. Barklind, 87 Wash.2d 814, 557 P.2d 314 (1976) upheld an order requiring repayment of counsel fees substantially similar to the one upheld in Fuller v. Oregon, supra. The court noted the new statute, and declined to apply a higher constitutional standard to it than mandated by the Fuller decision.
In Fuller, the United States Supreme Court set out certain conditions recoupment statutes must satisfy to be constitutional. The court held those conditions were met by the Oregon statute and the Oregon courts' interpretation of the statute. Summarized, these conditions are:
(1) The requirement of repayment must not be mandatory;
(2) Repayment may be imposed only upon convicted defendants (3) Repayment may only be ordered if the defendant is or will be able to pay;
(4) The financial resources of the defendant must be taken into consideration;
(5) A repayment obligation may not be imposed if it appears there is no likelihood the defendant's indigency will end;
(6) The convicted person must be permitted to petition the court for remission of the payment of costs or any unpaid portion thereof;
(7) The convicted person cannot be held in contempt for failure to repay if the default was not attributable to an intentional refusal to obey the court order or a failure to make a good faith effort to make repayment.
See Barklind, 87 Wash.2d at 817-18, 557 P.2d 314.
Here, Mr. Earls maintains the sentencing court failed to abide by these principles. In answer to his argument, the State contends Fuller and Barklind are concerned solely with conditions on probation, and since Mr. Earls is incarcerated, the principles set forth in those cases do not apply. However, the United States Supreme Court in Fuller rejected any such distinction within the statute between those ordered to repay costs who are incarcerated, and those merely on probation. Fuller, 417 U.S. at 49 n. 10, 94 S.Ct. at 2122-23 n. 10. See also State v. Mitchell, 48 Or.App. 485, 617 P.2d 298 (1980) (). We conclude the conditions required by Fuller apply equally to those on probation and those incarcerated or imprisoned.
The court's judgment and sentence lacks specific findings regarding Mr. Earls' present or future ability to pay, his financial resources, or the likelihood indigency will change. The record does not reveal any inquiry was made regarding these matters at sentencing. The statute and case law require such a consideration.
Oregon has interpreted its statute to require a sentencing court to specifically consider and make findings of an ability to repay. See State v. Mitchell, supra; State v. Fuller, 12 Or.App. 152, 504 P.2d 1393, aff'd, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974). Where our Legislature has adopted a statute of another state, our courts will consider as authoritative that state's construction of it. State v. Carroll, 81 Wash.2d 95, 109, 500 P.2d 115 (1972); Herzog Aluminum, Inc. v. General Am. Window Corp., 39 Wash.App. 188, 195, 692 P.2d 867 (1984). Mitchell relied upon the interpretation in State v. Fuller, supra, of the ability to pay provision.
"Defendants with no likelihood of having the means to repay are not put under even a conditional obligation to do so ..." Fuller, 417 U.S. at 46, 94 S.Ct. at 2121. We hold that without specific findings, that part of the judgment and sentence assessing costs and attorney fees cannot stand. 2
Finally, Mr. Earls assigns error to the inclusion of certain fees, including a service of process fee, a $70 filing fee, $50 jury fee, and certain witness fees and investigative costs. He contends these are "expenses inherent in providing a constitutionally guaranteed jury trial", excluded from recoupment by former RCW 10.01.160(2). While the compensation paid jurors cannot be recouped, see AGO 14, at 6 (1978), the jury fee of $50 can. See RCW 10.46.190. 3 The $70 filing fee may be charged to the defendant upon conviction or plea of guilty pursuant to former RCW 36.18.020(16). See AGO 14, at 6 (1976).
With regard to witness fees and the cost of investigators, the Oregon court has construed the identical provision in its statute, Or.Rev.Stat. § 161.665(2) (1971), to allow recoupment of these expenses as "costs specially incurred". State v. Hastings, 24 Or.App. 123, 544 P.2d 590 (1976); see AGO 14, at 5. We are persuaded this interpretation is correct. This same reasoning applies to the sheriff's fee for service of process.
We reverse that part of the judgment and sentence assessing fees and costs, and remand for...
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