State v. Pulgados
| Citation | 477 P.3d 155 |
| Decision Date | 30 October 2020 |
| Docket Number | NO. CAAP-19-0000577,CAAP-19-0000577 |
| Parties | STATE of Hawai‘i, Plaintiff-Appellee, v. Desmond C.K. PULGADOS, Defendant-Appellant |
| Court | Court of Appeals of Hawai'i |
On the briefs:
Benjamin E. Lowenthal, Office of the Public Defender, Wailuku, for Defendant-Appellant.
Richard B. Rost, Deputy Prosecuting Attorney, County of Maui, for Plaintiff-Appellee.
Ewan C. Rayner, Deputy Solicitor General, Department of the Attorney General, for Amicus Curiae, Attorney General, State of Hawai‘i.
Hawai‘i law provides that convicted criminal defendants must pay certain fees, including a crime victim compensation (CVC ) fee and internet crimes against children (ICAC ) fee, which help provide funding for certain criminal justice programs. See generally Hawaii Revised Statutes (HRS ) chapters 351 (Crime Victim Compensation Act) and 846F (Internet Crimes Against Children Act, also known as Alicia's Law). However, the pertinent statutes also provide, in varying terms, that these fees should not be ordered or should be waived if the defendant is unable to pay the fee. We analyze the language of these statutes and their application to the appellant, in light of the evidence in the record as to his financial circumstances, and we conclude that the trial court erred in imposing CVC fees and ICAC fees in this case.
Defendant-Appellant Desmond C.K. Pulgados (Pulgados ) appeals from the September 9, 2019 Amended Judgment of Conviction and Sentence (Amended Judgment ) and challenges the July 16, 2019 Findings of Fact and Conclusions of Law; Order Denying Defendant's Motion to Waive Court Fees and Motion to Reconsider Sentence (Order Denying Motion to Waive ), which were entered by the Circuit Court of the Second Circuit (Circuit Court ).1
Between December 2016 and March 2018, Pulgados was charged in six Felony Information and Non-Felony Complaints and one Indictment with 50 counts of, inter alia , credit card theft and fraud, forgery and identity theft, unauthorized property and vehicle entry, and various prohibited acts relating to drug paraphernalia and promotion.
On November 23, 2018, the State of Hawai‘i (the State ) and Pulgados reached a plea agreement under which Pulgados pleaded no contest to the following sixteen charges: Count 1 (Unauthorized Control of a Propelled Vehicle), Count 4 (Theft of Credit Card), and Count 9 (Promoting a Dangerous Drug in the Third Degree) in Case 2PC161001012; Count 2 (Theft of Credit Card) and Count 3 (Fraudulent Use of Credit Card) in Case 2CPC-17-0000224; Count 1 (Theft of Credit Card) and Count 2 (Fraudulent Use of Credit Card) in Case 2CPC-17-0000227; Count 1 (Unauthorized Control of a Propelled Vehicle) in Case 2CPC-17-0000291; Count 2 (Promoting a Dangerous Drug in the Second Degree) and Count 3 (Prohibited Acts Relating to Drug Paraphernalia) in Case 2CPC-17-0000416; Count 2 (Unauthorized Entry into Motor Vehicle in the First Degree) and Count 3 (Theft of Credit Card) in Case 2CPC-17-0000610; and Count 1 (Theft in the Second Degree), Count 2 (Theft of Credit Card), Count 3 (Theft of Credit Card), and Count 4 (Theft of Credit Card) in Case 2CPC-18-0000179.
At a March 20, 2019 sentencing hearing, the Circuit Court accepted Pulgados's no contest pleas and entered a Judgment; Conviction and Sentence; Notice of Entry (Judgment ), convicting Pulgados and sentencing him to an indeterminate sentence, with a maximum term of ten years on the Class B felony count, to run concurrently with the sentences for the Class C felony and misdemeanor counts, which have maximum terms of five years and one year, respectively, as well as a fine for the drug paraphernalia count.2 In the March 20, 2019 Judgment, the Circuit Court ordered Pulgados to pay: (1) CVC fees totaling $1,575.00 on fifteen counts; (2) ICAC fees totaling $1,500.00 on fifteen counts; (3) restitution in the amounts of $696.00 for Case No. 2PC161001012 and $210.99 for Case No. 2CPC-17-0000224; and (4) a court fine of $500.00 for Count 3 in Case No. 2CPC-17-0000416.3 At the sentencing hearing, the Circuit Court denied Pulgados's request that he be found indigent and that any fees be waived, but granted his request to hold a hearing to further examine whether a waiver was warranted.4 The court ordered payment of at least 25 percent of Pulgados's gross earnings while incarcerated, with payment thereafter at the rate of at least $30 per month, and with the $906.99 in restitution payable first.
On March 22, 2019, Pulgados filed a Motion to Waive Court Fees. Pulgados argued, inter alia , that the fees "can only be imposed upon convicted defendants who can afford to pay them" and that, because Pulgados could not afford to pay them, the fees had to be waived. Pulgados further contended that there was a "presumption of indigency" based on his qualification for representation by the Office of the Public Defender. Pulgados argued that the presumption persisted through sentencing and that, here, it was not rebutted by the State. In addition, Pulgados argued that even if he is not found indigent, the CVC and ICAC fees are unconstitutional as "[t]hey are not fees at all, but taxes unconstitutionally delegated to the Judiciary."5
At a June 3, 2019 evidentiary hearing on the Motion to Waive Court Fees, Pulgados argued that he could not afford to pay the CVC or ICAC fees.6 Pulgados testified that he had no income, no savings, no checking account, no real property, no stocks, no bonds, nor any other assets of any kind. Pulgados testified that he had no expenses, was living at Halawa Correctional Facility, and had been incarcerated there for two years at that point, and that he had not held a job in at least four years. Pulgados also testified that his last job was as a shuttle driver, but he did not have a driver's license as of the hearing.
When cross-examined about his ability to find employment upon his eventual release from prison, Pulgados testified that he could read and write English, completed the eleventh grade, and has a GED.7 Pulgados also testified that he has "disability problems" relating to "ankle surgeries and back surgery" which took place in 2016. In response to the State's inquiry as to whether "there is any reason why you [Pulgados] wouldn't be able to get a job after you're released from prison", Pulgados stated that his ankle injury
is "pretty serious" and causes him "to be like limited, like immobile." When asked about how the back surgery affects him, Pulgados stated that he cannot stand for very long or do heavy lifting, but that he would be able to work while sitting, and, upon inquiry, he confirmed that he had never filed any type of disability claim.
Pulgados acknowledged that not all jobs would require standing, but claimed that he would not be able to return to work as a shuttle driver due to the injuries to his ankle
. When further questioned about whether he would seek employment upon his release, Pulgados stated that it is "hard for a convict or a felon to get a job." However, he said that he is planning to try to find work when he gets out of prison and, if he could get a job, he might be able to pay $30 per month. Pulgados was 36 years old as of the June 3, 2019 hearing.
On July 16, 2019, the Circuit Court entered the Order Denying Motion to Waive. The court found and concluded that "though Defendant has some medical issues, he is otherwise healthy, young, able-bodied, educated, and willing and able to find employment after release from custody." In addition, the court found that Pulgados "has the ability to become employed in the future; and, when he becomes employed, the minimum payment of $30.00 per month would be feasible." The Circuit Court therefore concluded that Pulgados "is willing and will eventually be able to pay the fees pursuant to HRS § 706-605(6)." In response to Pulgados's argument that the fees levied on him are unconstitutional delegations of the taxing power, the Circuit Court concluded that the statutes providing for the ICAC and CVC fees are constitutional and further concluded that Pulgados had not "satisfied his burden that no set of circumstances exists under which HRS §§ 351 and 846F would be valid." On August 15, 2019, Pulgados filed a notice of appeal.
On September 9, 2019, the Circuit Court entered the Amended Judgment, which convicted and found Pulgados guilty of fifteen charges, which were the same as the charges set forth in the March 20, 2019 Judgment, except that the Amended Judgment did not include a conviction for Count 1 (Theft in the Second Degree) in Case 2CPC-18-0000179. Therefore, there was no sentence of imprisonment, no CVC fees, and no ICAC fees related to that charge, and the total CVC fees levied against Pulgados were reduced (by $105.00) to $1,470.00 and the total ICAC fees were reduced (by $100.00) to $1,400.00. Like the Judgment, the Amended Judgment included a fine of $500.00 and restitution payments totaling $906.99. On September 25, 2019, Pulgados filed an amended notice of appeal.
Pulgados asserts two points of error, contending that the Circuit Court erred: (1) in finding and concluding that Pulgados is able to pay the CVC fees and ICAC fees totaling $2,870.00, on top of restitution in the amount of $906.99 and a fine of $500.00; Pulgados points to Findings of Fact (FOFs ) 13 and Conclusions of Law (COLs ) 6, 32, and 33 in his first point of error; and (2) when it levied $2,870.00 in fees from Pulgados pursuant to an unconstitutional delegation of the Legislature's taxing power and applied the wrong test in determining when charges are taxes or fees; Pulgados points to COLs 13-16, 18, and 20-21 in his second point of error.
We review the Circuit Court's findings of fact under the clearly erroneous standard. See, e.g., Peak Capital Grp. v. Perez, 141 Hawai‘i 160, 172, 407 P.3d 116, 128 (2017) (...
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