State v. Kelley

Decision Date27 February 2017
Docket NumberDocket No. 44178
Citation161 Idaho 686,390 P.3d 412
CourtIdaho Supreme Court
Parties STATE of Idaho, Plaintiff-Respondent, v. Thomas Campbell KELLEY, Defendant-Appellant.

Bublitz Law PC, Caldwell, for appellant. Jessica B. Bublitz argued.

Hon. Lawrence G. Wasden, Idaho Attorney General, Boise, for respondent. Kenneth K. Jorgensen argued.

BURDICK, Chief Justice

Thomas Kelley appeals the Ada County district court's award of restitution entered under Idaho Code section 37-2732(k). The Idaho Court of Appeals vacated the restitution award on evidentiary grounds. We granted the State's timely petition for review, and we now affirm the district court's award of restitution.

I. FACTUAL AND PROCEDURAL BACKGROUND

In June 2013, the State charged Kelley with trafficking marijuana. He initially pleaded not guilty and moved to suppress evidence seized in a traffic stop. The district court denied the motion to suppress. Kelley entered a conditional plea of guilty and reserved his right to appeal the denial of the motion to suppress. The Court of Appeals affirmed the denial of the motion to suppress. State v. Kelley , 159 Idaho 417, 361 P.3d 1280 (Ct. App. 2015).

In November 2014, the district court sentenced Kelley to eight years imprisonment, with a minimum one-year confinement followed by five years indeterminate. On February 6, 2015, the district court held a restitution hearing, where the State sought to recoup its prosecution costs under Idaho Code section 37-2732(k). To that end, the State submitted a written, but unsworn, statement as evidence of its prosecution costs. At the hearing, the district court granted Kelley's request for further time to review the State's evidence, and additional arguments were held on February 20, 2015 and March 5, 2015. The State initially requested $3,584.50 in restitution, which reflects 25.5 hours of work billed at $140 per hour, and 0.1 hours billed at $145 per hour. However, at the March 5, 2015 hearing, the State provided a "more precise accounting" and requested $7,328.50, which reflects 42.3 hours of work billed at $140 per hour, and 9.7 hours of work billed at $145 per hour. Kelley objected that the State's award would (1) violate due process; (2) punish him for exercising his Sixth Amendment rights to stand trial and present a defense; (3) violate equal protection; and (4) be unreasonable and excessive.

Although the district court rejected Kelley's constitutional arguments, it found the State's request excessive. The district court reasoned that the State's (1) increased request reflecting additional hours was not supported by evidence; and (2) requested hourly rate ($140/$145) was excessive. Ultimately, the district court concluded the State was entitled to $2,640, which reflects 35.2 hours of work billed at $75 per hour.

Kelley appealed, and the Court of Appeals vacated the award and remanded. On appeal, Kelley raised constitutional arguments and contended the district court abused its discretion by failing to consider his financial circumstances. The Court of Appeals, however, did not address those arguments. Instead, it held that insufficient evidence supported the award because it was based only on the State's unsworn representations. We granted the State's timely petition for review.

II. ISSUES ON APPEAL

1. Is Idaho Code section 37-2732(k) constitutional under the Sixth and Fourteenth Amendments to the U.S. Constitution?

2. Did the district court abuse its discretion by failing to consider Kelley's financial ability to repay the restitution award?

III. STANDARD OF REVIEW

When addressing a petition for review, this Court will give "serious consideration to the views of the Court of Appeals, but directly reviews the decision of the lower court." State v. Schall , 157 Idaho 488, 491, 337 P.3d 647, 650 (2014).

IV. DISCUSSION

This appeal brings to light Idaho Code section 37-2732(k). That statute permits the State to recoup its prosecution costs as restitution, providing as follows:

Upon conviction of a felony or misdemeanor violation under this chapter or upon conviction of a felony pursuant to the "racketeering act," section 18-7804, Idaho Code, or the money laundering and illegal investment provisions of section 18-8201, Idaho Code, the court may order restitution for costs incurred by law enforcement agencies in investigating the violation. Law enforcement agencies shall include, but not be limited to, the Idaho state police, county and city law enforcement agencies, the office of the attorney general and county and city prosecuting attorney offices. Costs shall include, but not be limited to, those incurred for the purchase of evidence, travel and per diem for law enforcement officers and witnesses throughout the course of the investigation, hearings and trials, and any other investigative or prosecution expenses actually incurred, including regular salaries of employees. In the case of reimbursement to the Idaho state police, those moneys shall be paid to the Idaho state police for deposit into the drug and driving while under the influence enforcement donation fund created in section 57-816, Idaho Code. In the case of reimbursement to the office of the attorney general, those moneys shall be paid to the general fund. A conviction for the purposes of this section means that the person has pled guilty or has been found guilty, notwithstanding the form of the judgment(s) or withheld judgment(s).

I.C. § 37-2732(k). The two main issues we address are whether: (A) section 37-2732(k) is constitutional under the Sixth and Fourteenth Amendments to the U.S. Constitution; and (B) the district court abused its discretion by failing to consider Kelley's financial ability to repay the restitution award.1

A. Idaho Code section 37-2732(k) is constitutional under the Sixth and Fourteenth Amendments to the U.S. Constitution.

Constitutional questions are reviewed de novo . State v. Draper , 151 Idaho 576, 598, 261 P.3d 853, 875 (2011). When a party challenges a statute on constitutional grounds, it "bears the burden of establishing that the statute is unconstitutional and must overcome a strong presumption of validity. Appellate courts are obligated to seek an interpretation of a statute that upholds its constitutionality." State v. Manzanares , 152 Idaho 410, 418, 272 P.3d 382, 390 (2012) (quoting State v. Korsen , 138 Idaho 706, 711, 69 P.3d 126, 131 (2003) ).

Kelley's constitutional challenges arise exclusively under the U.S. Constitution, implicating the Sixth and Fourteenth Amendments.2 We address those challenges below.

1. Section 37-2732(k) does not violate Sixth Amendment rights to stand trial and present a defense.

First, Kelley argues section 37-2732(k) impermissibly chills Sixth Amendment rights to stand trial and present a defense by punishing defendants who exercise these rights. Kelly relies on United States v. Jackson , 390 U.S. 570, 584–86, 88 S.Ct. 1209, 1217–19, 20 L.Ed.2d 138, 148–50 (1968), where the U.S. Supreme Court invalidated a statute authorizing the death penalty only if the defendant stood trial and the "verdict of the jury shall so recommend." Thus, standing trial triggered the possibility of being sentenced to death. Id. The statute sought to limit "the death penalty to cases in which a jury recommends it...." Id. at 582, 88 S.Ct. at 1217, 20 L.Ed.2d at 147. The Government contended "because the [statute] thus operates ‘to mitigate the severity of punishment,’ it is irrelevant that it ‘may have the incidental effect of inducing defendants not to contest in full measure.’ " Id. The Court rejected that argument. Id. Instead, even though the statute's purpose was "entirely legitimate," the Court held that the statute "needlessly penalize[d] the assertion of a constitutional right." Id. at 583, 88 S.Ct. at 1217, 20 L.Ed.2d at 147–48. Because other means could have been used to achieve the statute's purpose,3 the Court held that the statute's chilling effect was "unnecessary and therefore excessive." Id. at 582, 88 S.Ct. at 1216, 20 L.Ed.2d at 147.

Kelley attempts to analogize section 37-2732(k) to the statute in Jackson , explaining that "[k]nowing he will be required to pay for each stage of the process will necessarily result in a chilling effect upon the assertion of his rights." We disagree. As a preliminary matter, Kelley overlooks that the U.S. Supreme Court has refused to adopt a broad reading of Jackson . As the Court clarified in Chaffin v. Stynchcombe , 412 U.S. 17, 30, 93 S.Ct. 1977, 1984–85, 36 L.Ed.2d 714, 725–26 (1973), " Jackson did not hold, as subsequent decisions have made clear, that the Constitution forbids every government-imposed choice in the criminal process that has the effect of discouraging the exercise of constitutional rights." Chaffin concerned a defendant who received a harsher sentence on retrial than at the first trial. Id. at 18–19, 93 S.Ct. at 1978–79, 36 L.Ed.2d at 718–19. The defendant argued the harsher sentence impermissibly chilled his right to challenge his conviction by direct appeal or collateral attack. Id. at 23, 93 S.Ct. at 1981, 36 L.Ed.2d at 721–22. The Court disagreed, instead holding that the possibility of a harsher sentence on retrial was legitimate and too speculative to impermissibly chill any constitutional rights. Id. at 34–35, 93 S.Ct. at 1986–87, 36 L.Ed.2d at 728–29.

Further, Jackson itself does not suggest section 37-2732(k) is unconstitutional. As the State explains, unlike Jackson , section 37-2732(k) is "not premised upon whether the defendant exercises his right to a jury trial. That costs may be more, and therefore the restitution award greater, if the defendant proceeds to trial does not mean the statute impermissibly chills the exercise of the right to a jury trial." The State finds support from other jurisdictions. Ohree v. Commonwealth , 26 Va.App. 299, 494 S.E.2d 484, 488 (1998) ("[T]he imposition of the cost of providing a jury does not impose an excessive or unnecessary...

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