State v. Murrell, 23808.

• Decision Date: 16 December 1997
• Docket Number: No. 23808.,23808.
• Citation: 499 S.E.2d 870,201 W.Va. 648
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, Appellee, v. Mark Randal MURRELL, Appellant.

499 S.E.2d 870

201 W.Va. 648

STATE of West Virginia, Appellee, v. Mark Randal MURRELL, Appellant.

No. 23808.

Supreme Court of Appeals of West Virginia.

Submitted October 8, 1997.

Decided December 16, 1997.

Darrell V. McGraw, Attorney General, Scott E. Johnson, Senior Assistant Attorney General, Charleston, for Appellee.

Stephen Warner, Managing Deputy Public Defender, Charleston, for Appellant. WORKMAN, Chief Justice:

Mark Randal Murrell (hereinafter "Appellant") appeals the imposition of a $20,000 fine after a plea of guilty to two counts of third degree sexual assault. The Appellant contends that the fines and costs constitute a violation of statutory and constitutional principles. We are not persuaded by the Appellant's argument, and we affirm the decision of the lower court, except to the extent that the lower court would require payment of attorney fees within thirty days, in conflict with West Virginia Code § 29-21-16(g)(3) (1992), providing that the order is not enforceable during a period of imprisonment.

I.

On March 6, 1995, the Appellant pled guilty to two counts of third degree sexual assault, and by order entered on June 5, 1995, he was sentenced to two consecutive one to five year prison terms and was ordered to pay $10,000 per count in fines, plus costs.¹ West Virginia Code § 61-8B-5(b) (1997) provides that "[a]ny person who violates the provisions of this section shall be guilty of a felony, and, upon conviction thereof, shall be imprisoned in the penitentiary not less than one year nor more than five years, or fined not more than ten thousand dollars and imprisoned in the penitentiary not less than one year nor more than five years."

On June 21, 1995, the Appellant's counsel moved for reduction² of the sentence, asking the court to take into consideration the amount of the fine in relation to the Appellant's ability to pay. The lower court denied that motion without hearing on July 11, 1995. On March 6, 1996, the lower court entered a general order pursuant to West Virginia Code § 62-4-17 (1997) directing defendants in Monroe County to pay all costs, fines, penalties and restitution within thirty days of the judgment order.³

A second motion for reduction was filed, pro se, on May 16, 1996, and was again denied without hearing by order entered on May 29, 1996.⁴ The Appellant thereafter filed a petition for appeal with this Court, contending that he does "not challeng[e] his plea and conviction, but wishes to challenge the imposed fines due to his inability to pay without undue hardship...." We granted that petition for appeal and appointed the Kanawha County Public Defender's Office as appellate counsel. This inquiry is most effectively resolved by separately addressing the issues of costs and fines.

II. COSTS IMPOSED

The Appellant asserts that the lower court erred in charging him the costs of his court appointed attorney, primarily based upon the fact that the lower court failed to comply with the mandates of West Virginia Code § 29-21-16(g),⁵ regarding an inquiry into the Appellant's ability to pay such costs without under hardship. Pursuant to section 29-21-16(g)(3), orders requiring repayment of attorney fees are not enforceable during a period of incarceration, unless the court finds, at the time of sentencing, that the person has sufficient assets to pay the amounts ordered or finds sufficient likelihood that the person will acquire those necessary assets in the foreseeable future. The State concedes that the lower court's order requiring repayment of appointed attorney's fees within thirty days is void to the extent that it conflicts with West Virginia Code § 29-21-16(g)(3), and we conclude that such order is unenforceable while the Appellant remains in prison. Upon his release, the Appellant is entitled to a hearing on his ability to pay the assessed attorney fees, in accordance with West Virginia Code § 29-21-16(g).

III. FINES IMPOSED

The Appellant's sentence, pursuant to West Virginia Code § 61-8B-5(b) as set forth above, included fines of $10,000 per offense, for a total of $20,000. The Appellant maintains that the $20,000 fine was constitutionally excessive based upon his alleged inability to pay and upon the lower court's failure to adequately justify⁶ the imposition of such a fine. The State responds with the assertion that the United State's Constitution's Eighth Amendment prohibition on cruel and unusual punishment and the West Virginia constitutional requirement of proportional penalties⁷ do not compel an inquiry into the ability to pay a fine prior to the imposition of that fine. The Eighth Amendment to the United States Constitution provides: "Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted." In syllabus point four of State v. Cooper, 172 W.Va. 266, 304 S.E.2d 851 (1983), we explained as follows:

Article III, Section 5 of the West Virginia Constitution, which contains the cruel and unusual punishment counterpart to the Eighth Amendment of the United States Constitution, has an express statement of the proportionality principle: "Penalties shall be proportioned to the character and degree of the offence." Syllabus Point 8, State v. Vance, 164 W.Va. 216, 262 S.E.2d 423 (1980).

172 W.Va. at 267, 304 S.E.2d at 852, syl. pt. 4. In syllabus point five of Cooper, we continued:

Punishment may be constitutionally impermissible, although not cruel or unusual in its method, if it is so disproportionate to the crime for which it is inflicted that it shocks the conscience and offends fundamental notions of human dignity, thereby violating West Virginia Constitution, Article III, Section 5 that prohibits a penalty that is not proportionate to the character and degree of an offense.

172 W.Va. at 267-68, 304 S.E.2d at 852, syl. pt. 5. This Court has "traditionally examined the constitutionality of sentences in light of the proportionality requirement ..." of Article III, Section 5.⁸ State v. Fortner, 182 W.Va. 345, 364, 387 S.E.2d 812, 831 (1989). We have also acknowledged, however, that the proportionality analysis is not applicable to every type of sentence. Id. In syllabus point four of Wanstreet v. Bordenkircher, 166 W.Va. 523, 276 S.E.2d 205 (1981), we reasoned that "[w]hile our constitutional proportionality standards theoretically can apply to any criminal sentence, they are basically applicable to those sentences where there is either no fixed maximum set by statute or where there is a life recidivist sentence." Id. at 524, 276 S.E.2d at 206. As noted by the Texas court in Wright v. State, 930 S.W.2d 131 (Tex.App.1996), "punishment that falls within the range authorized by statute" does not violate the prohibition against cruel and unusual punishment. Id. at 134.

Further, we have consistently held that "it is this Court's practice not to interfere with a sentence imposed within legislatively prescribed limits, so long as the trial judge did not consider any impermissible factors." State v. Farr 193 W.Va. 355, 358, 456 S.E.2d 199, 202 (1995) (citation omitted). In syllabus point two of State v. Farmer, 193 W.Va. 84, 454 S.E.2d 378 (1994), we explained: "`Sentences imposed by the trial court, if within statutory limits and if not based on some [im]permissible factor, are not subject to appellate review.' Syl. pt. 4, State v. Goodnight, 169 W.Va. 366, 287 S.E.2d 504 (1982)." 193 W.Va. at 85,454 S.E.2d at 379; see State v. Broughton, 196 W.Va. 281, 470 S.E.2d 413 (1996). The Appellant's fine of $10,000 per count was within the statutory limit for punishment of his crime, and there is no evidence indicating that the lower court considered any impermissible factor in setting the fine.

In State v. Hopkins, 192 W.Va. 483, 453 S.E.2d 317 (1994), the defendant argued that a $50 fine, designated by statute, constituted an unconstitutional taking. Id. at 486, 453 S.E.2d at 320. We found "nothing in the record to indicate that Mr. Hopkins' fines are excessive, shocking, violative of fundamental fairness, disproportionate, without penological justification or unnecessarily painful." Id. at 491, 453 S.E.2d at 325.

IV. ABILITY TO PAY

The practical ramifications of the Appellant's alleged inability to pay the fines must also be addressed. While we find no impediment to the lower court's imposition of the statutory fine, we must also acknowledge that concepts of equal protection may be implicated in the attempt to collect the fine or in the attempt to impose sanctions upon the Appellant for failure to pay the fine. In syllabus point one of State v. Haught, 179 W.Va. 557, 371 S.E.2d 54 (1988), we explained as follows:

Before a trial court conditions its recommendation for a defendant's parole upon the defendant's payment of statutory fines, costs and attorney's fees, the trial court must consider the financial resources of the defendant, the defendant's ability to pay and the nature of the burden that the payment of such costs will impose upon the defendant.

Id. at 558, 371 S.E.2d at 55.

Our decision in Haught was premised upon principles enunciated by the United States Supreme Court in Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983). In that case, the Court succinctly stated that "[a] defendant's poverty in no way immunizes him from punishment." Id. at 669, 103 S.Ct. at 2071. The Court had encountered a defendant who had been ordered, as part of his sentence, to pay a fine and make financial restitution. Id. at 661, 103 S.Ct. at 2066-67. Subsequent to partial payment by the defendant, he was laid off his job and consequently became unable to continue payments; the state then moved for a revocation of the defendant's probation for failure to pay the monies ordered. Id. at 663, 103 S.Ct. at 2068. The United States Supreme Court held that in revocation proceedings for failure to pay a fine or restitution, a sentencing court must inquire into the reasons for the failure to pay. Id. at...