State v. Nolan

• Court: Washington Supreme Court
• Writing for the Court: TALMADGE, J.
• Citation: State v. Nolan, 141 Wash.2d 620, 8 P.3d 300 (Wash. 2000)
• Decision Date: 14 September 2000
• Docket Number: No. 69046-4.
• Parties: STATE of Washington, Respondent, v. Thomas NOLAN, Petitioner.

8 P.3d 300

141 Wash.2d 620

STATE of Washington, Respondent, v. Thomas NOLAN, Petitioner.

No. 69046-4.

Supreme Court of Washington.

Argued June 29, 2000.

Decided September 14, 2000.

James Robert Dixon, Kathryn Allison Russell, Seattle, for Petitioner.

Jim Krider, Snohomish County Prosecutor, S. Aaron Fine, Deputy, David Thiele, Deputy, Everett, for Respondent.

TALMADGE, J.

We determine in this case if RCW 10.73.160, which authorizes recovery from an unsuccessful appellant the costs for publicly paid appellate counsel under Title 14 of the Rules of Appellate Procedure, is confined to cases where the criminal defendant's appeal is frivolous. We hold RCW 10.73.160 is not confined to frivolous appeals. Under the statute, an appellate court has the discretion to impose the expense of a criminal defendant's publicly paid appellate counsel as a recoverable item of cost if the State is the substantially prevailing party on appeal. We affirm the decision of the Court of Appeals.

ISSUE

Do RCW 10.73.160 and RAP 14.2, read together, permit the imposition of costs on appeal only when the appeal is meritless or frivolous?

FACTS

Thomas Nolan was convicted of possession of stolen property after a truck owned by an Everett police officer Mark Thacker was found parked in front of Nolan's home and Nolan admitted using it. Nolan appealed and Division One of the Court of Appeals affirmed the conviction in an unpublished opinion. State v. Nolan, No. 41646-4-I, 94 Wash.App. 1004 (Wash.Ct.App. Feb. 16, 1999). The State then filed a cost bill including the following items:

Cost of [re]producing Brief of Respondent $ 82.00 Cost of preparing Clerk's Papers $ 6.75 Cost of preparing transcript $1,325.05 Cost of court appointed appellate counsel $1,970.00 _________ $3,410.00 [sic]

Cost Bill (Feb. 22, 1999).¹ Nolan filed an objection to the cost bill two days later. RAP 14.5. He asked the court to deny the request for costs on the ground his appeal was not frivolous. In the alternative, Nolan asked the Court of Appeals to remand the cost issue to the trial court for a hearing on his indigency, and for the appointment of counsel to litigate the cost issue.

The Court of Appeals commissioner entered a ruling rejecting Nolan's objections to the cost bill and awarding costs to the State. Nolan then moved to modify the commissioner's ruling, and the Court of Appeals set the issue for oral argument. The Court of Appeals denied Nolan's motion to modify, thereby affirming the award of costs against Nolan in favor of the State. State v. Nolan, 98 Wash.App. 75, 988 P.2d 473 (1999). The Court of Appeals held the award of costs pursuant to RCW 10.73.160 was required in the absence of "compelling circumstances." Id. at 84, 988 P.2d 473. We granted review.

ANALYSIS

We have treated the issue of recoverable costs in criminal cases in several cases. In State v. Barklind, 87 Wash.2d 814, 557 P.2d 314 (1976), we held the public defender expenses incurred on behalf of a defendant could be recovered as a trial cost by the State if it were the prevailing party. In State v. Keeney, 112 Wash.2d 140, 769 P.2d 295 (1989), we found the imposition of statutory costs on appeal in favor of the State against a criminal defendant to be mandatory under RAP 14.2 and constitutional, but we declined to allow the State to recover a statutory attorney fee on appeal pursuant to RCW 4.84.080. See also State v. Obert, 50 Wash. App. 139, 143, 747 P.2d 502 (1987) (holding Rules of Appellate Procedure do not prohibit award of costs against indigents).

When confronted with the question of whether the State, as the prevailing party on appeal, could recover the defendant's appellate attorney expense as an item of costs, we declined to allow such a recovery in State v. Rogers, 127 Wash.2d 270, 281, 898 P.2d 294 (1995), stating: "The State may not recoup attorney fees and costs on review incurred by the Appellate Indigent Defense Fund without statutory authority. It has cited no authority to support its claim for recoupment."

In response to our holding in Rogers, the Legislature enacted RCW 10.73.160(1), which states: "The court of appeals, supreme court, and superior courts may require an adult or a juvenile convicted of an offense or the parents or another person legally obligated to support a juvenile offender to pay appellate costs." The statute goes on to define "appellate costs":

Appellate costs are limited to expenses specifically incurred by the state in prosecuting or defending an appeal or collateral attack from a criminal conviction or sentence or a juvenile offender conviction or disposition. Appellate costs shall not include expenditures to maintain and operate government agencies that must be made irrespective of specific violations of the law. Expenses incurred for producing a verbatim report of proceedings and clerk's papers may be included in costs the court may require a convicted defendant or juvenile offender to pay.

RCW 10.73.160(2).

We examined RCW 10.73.160 in State v. Blank, 131 Wash.2d 230, 930 P.2d 1213 (1997), and rejected the constitutional arguments the defendants posed there. We described the statute's operation:

RCW 10.73.160 provides for recoupment of appellate costs from a convicted defendant. "Costs" are "limited to expenses specifically incurred by the state in prosecuting or defending an appeal or collateral attack from a criminal conviction" and include the cost of a verbatim report of proceedings, clerk's papers, and fees for court appointed counsel. RCW 10.73.160(2), (3). Costs of maintaining and operating government agencies are not included. RCW 10.73.160(2). Costs are to be requested by the State pursuant to the procedures set out in RAP Title 14. RCW 10.73.160(3). An award under the statute "shall become part of the ... judgment and sentence." RCW 10.73.160(3). A defendant who is not in contumacious default may petition the court at any time for remission of the costs or any unpaid portion. RCW 10.73.160(4). If payment will impose manifest hardship on the defendant or the defendant's immediate family, the court may remit all or part of the amount due, or modify the method of payment under RCW 10.01.170. RCW 10.73.160(4).

Id. at 234-35, 930 P.2d 1213.

Reading the language of RCW 10.73.160(1) as permissive because of the word "may," Nolan asserts costs may be awarded only when an appeal is meritless or frivolous. He relies on a Division Two case, State v. Edgley, 92 Wash.App. 478, 483-84, 966 P.2d 381 (1998),review denied, 137 Wash.2d 1026, 980 P.2d 1285 (1999), where the Court of Appeals denied the State's request for costs on appeal, holding, without further analysis: "The purpose of awarding costs to the prevailing parties is to discourage meritless appeals." As authority for its holding, the Court of Appeals cited a case decided six years before the 1995 enactment of RCW 10.73.160, Puget Sound Bank v. Richardson, 54 Wash. App. 295, 298, 773 P.2d 429 (1989). Edgley is of limited authority for the issues in this case, however, because it relied on Richardson, which concerned MAR 7.3, the rule specifying the conditions for awarding attorney fees in an appeal from a mandatory arbitration award. The Richardson court said: "The purpose of [MAR 7.3] is to discourage meritless appeals and to thereby reduce court congestion." Id. at 298, 773 P.2d 429. Edgley's lack of analysis and reliance on inapposite authority make it a rather feeble groundwork for Nolan's position. A closer examination of the statute is necessary.

We begin our analysis of the statute here by applying one of our traditional rules of statutory construction: we do not construe plain and unambiguous statutes. Western Telepage, Inc. v. City of Tacoma Dep't of Financing, 140 Wash.2d 599, 608, 998 P.2d 884 (2000). RCW 10.73.160(1) is unambiguous.

RCW 10.73.160(1) requires us to apply its provisions in a fashion consistent with Title 14 of the Rules of Appellate Procedure. RAP 14.2 provides:

A commissioner or clerk of the appellate court will award costs to the party that substantially prevails on review, unless the appellate court directs otherwise in its decision terminating review. If there is no substantially prevailing party on review, the commissioner or clerk will not award costs to any party. An award of costs will specify the party who must pay the award. In a criminal case involving an indigent juvenile or adult offender, an award of costs will apportion the money owed between the county and the State. A party who is a nominal party only will not be awarded costs and will not be required to pay costs. A "nominal party" is one who is named but has no real interest in the controversy.

Thus, the first step in determining if costs under Title 14 of the Rules of Appellate Procedure may be awarded in a criminal appeal is to determine if the State is the "substantially prevailing party." In the seminal case of Family Med. Bldg., Inc. v. DSHS, 38 Wash.App. 738, 739, 689 P.2d 413 (1984), the Court of Appeals described that concept as follows:

The State's argument is based upon a misinterpretation of the comment to RAP 14.2, 86 Wash.2d 1225 (1976). That rule provides: "A commissioner or clerk of the appellate court will award costs to the party that substantially prevails on review,..." The comment to the rule states: "In other words, the award of costs is based on who wins the review proceeding—not on who ultimately prevails on the merits."

The State reads the comment as directing the award of costs to the party who obtains a reversal or an affirmance. Such an interpretation does not take into consideration the language of the rule itself which allows costs to "the party that substantially prevails." (Italics ours.) In order to determine which party substantially prevailed on review, the clerk or commissioner must have discretion to look beyond the bottom line of reversal or affirmance.

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