State v. Webb

• Decision Date: 06 February 2004
• Docket Number: No. 157PA03.,157PA03.
• Parties: STATE of North Carolina v. Dudley WEBB.
• Court: North Carolina Supreme Court

591 S.E.2d 505

358 N.C. 92

STATE of North Carolina v. Dudley WEBB.

No. 157PA03.

Supreme Court of North Carolina.

February 6, 2004.

Roy Cooper, Attorney General, by Norma S. Harrell, Special Deputy Attorney General, for the State-appellant.

Robert Brown, Jr., Public Defender; Heather H. Freeman, Assistant Public Defender; and C. Scott Holmes, Durham, for defendant-appellee.

Seth H. Jaffe, Counsel; and Kurtz & Blum, P.L.L.C., by Howard A. Kurtz and Paula K. McGrann, Raleigh, on behalf of the American Civil Liberties Union of North Carolina Legal Foundation, Inc., amicus curiae.

EDMUNDS, Justice.

On 10 December 2002, an order for the arrest of Dudley Cedrick Webb (defendant) was issued, alleging that he had violated the terms of his probation. Defendant requested and received appointed counsel as an indigent and, pursuant to N.C.G.S. § 7A-455.1, thereupon became obligated to pay a fifty dollar "appointment fee" regardless of the outcome of his criminal proceedings. Defendant filed a motion in Superior Court, Durham County, to declare the statute unconstitutional, alleging that this appointment fee violated the Fourteenth Amendment of the United States Constitution.

After conducting a hearing in which arguments for both sides were presented, the trial court found that the appointment fee violated not only the United States Constitution but also Article I, Section 23 of the North Carolina Constitution. On 19 March 2003, the trial court entered an amended order declaring N.C.G.S. § 7A-455.1 unconstitutional and enjoining the clerk of superior court from collecting the appointment fee or entering judgments for the fee. On 2 April 2003, this Court issued a writ of supersedeas staying enforcement of the trial court's order. We affirm the decision of the trial court, as modified.

Section 7A-455.1 requires any indigent defendant who requests the appointment of counsel to pay a non-refundable fifty dollar appointment fee regardless of the outcome of the criminal proceedings. N.C.G.S. § 7A-455.1(a), (b) (Supp.2002). Forty-five dollars of the appointment fee is allocated to the Indigent Persons' Attorney Fee Fund and the remaining five dollars goes to the Court Information Technology Fund. N.C.G.S. § 7A-455.1(f). Section 7A-455.1 became effective 1 December 2002. Act of Dec. 1, 2002, ch. 126, sec. 24A.9(c), 2002 N.C. Sess. Laws 291, 495. Although the fee is payable at the time of appointment, "[i]nability, failure, or refusal to pay the appointment fee shall not be grounds for denying appointment of counsel, for withdrawal of counsel, or for contempt." N.C.G.S. § 7A-455.1(d). If this appointment fee is paid prior to the final determination of the action at the trial level, it is credited against any attorney's fees due. However, if the appointment fee is paid after final determination of the case, it is added to any attorney's fees due and is collected in the same manner as attorney's fees. N.C.G.S. § 7A-455.1(b). If no attorney's fees are owed after final determination of the action, the appointment fee is reduced to judgment and constitutes a lien. Id. Thus, under this statute, a defendant who pays the appointment fee before the resolution of his or her case obtains an appreciable benefit.

"Although there is a strong presumption that acts of the General Assembly are constitutional, it is nevertheless the duty of this Court, in some instances, to declare such acts unconstitutional." Stephenson v. Bartlett, 355 N.C. 354, 362, 562 S.E.2d 377, 384 (2002). In determining the constitutionality of N.C.G.S. § 7A-455.1 under the Constitution of North Carolina, the dispositive issue is whether the appointment fee is a "cost" imposed in violation of Article I, Section 23, which provides that "[i]n all criminal prosecutions, every person charged with [a] crime has the right ... not [to] be compelled to ... pay costs, jail fees, or necessary witness fees of the defense, unless found guilty." N.C. Const. art. I, § 23. We are guided by the basic principle of constitutional construction of "`giv[ing] effect to the intent of the framers.'" Perry v. Stancil, 237 N.C. 442, 444, 75 S.E.2d 512, 514 (1953) (quoting 11 Am.Jur. Constitutional Law § 61 (1937)). "Constitutional provisions should be construed in consonance with the objects and purposes in contemplation at the time of their adoption. To ascertain the intent of those by whom the language was used, we must consider the conditions as they then existed and the purpose sought to be accomplished." Id. Accordingly, we review the history of this provision.

Prior to 1868, "criminal defendants in North Carolina were obliged to pay costs even if acquitted." John V. Orth, The North Carolina State Constitution: A Reference Guide 66 (Greenwood Press 1993) [hereinafter Orth] (citing State v. Hodson, 74 N.C. 151 (1876)). In that year, the people of North Carolina ratified a new Constitution, which provided that "[i]n all criminal prosecutions, every [person] has the right ... not [to] be compelled ... to pay costs, jail fees, or necessary witness fees of the defen[s]e, unless found guilty." N.C. Const. of 1868, art. I, § 11. This provision, sparing the accused some of the expenses associated with establishing his or her innocence, was included in the 1868 Constitution because no basis existed for requiring an accused to bear the costs incurred by the State in its unsuccessful prosecution. Orth. Thereafter, costs of prosecution "incurred in the conduct of the prosecution and making it effectual in a verdict" devolved upon the accused only upon conviction. State v. Wallin, 89 N.C. 578, 580 (1883). Article I, Section 11 of the 1868 Constitution was incorporated into the 1971 Constitution without material variance as Article I, Section 23.

The State contends that the appointment fee is not a cost of prosecution, but instead consists in part of an attorney's fee and in part of an administrative fee, together intended to defray the costs of providing counsel to indigents, and collectively constitutional. Under this theory, the appointment fee properly may be charged to any criminal defendant, acquitted or convicted.

We begin our analysis by considering whether a portion of the appointment fee can be considered an attorney's fee. Attorney's fees are "charge[s] to a client for services performed for the client." Black's Law Dictionary 125 (7th ed.1999) (emphasis added). The forty-five dollars of the appointment fee that is paid to the Indigent Persons' Attorney Fee Fund does not fall within this definition because it is not directly related to the individual defendant who is resisting prosecution or defending against a particular criminal charge. Instead, the appointment fee has a more general purpose. North Carolina, like every other jurisdiction, has a constitutional duty to provide court-appointed counsel to an indigent defendant upon request. Gideon v. Wainwright, 372 U.S. 335, 83 S.Ct. 792, 9 L.Ed.2d 799 (1963); see also N.C.G.S. §§ 7A-450(b), -498.1 (2003). The expense to the State of providing such counsel is an "unavoidable consequence[ ] of a system of government which is required to proceed against its citizens in a public trial in an adversary proceeding." Schilb v. Kuebel, 404 U.S. 357, 378, 92 S.Ct. 479, 30 L.Ed.2d 502, 518 (1971) (Douglas, J., dissenting). The appointment fee helps support that part of the criminal justice system that enables the State constitutionally to prosecute indigent defendants who qualify for court-appointed counsel. Article I, Section 23 does not insulate acquitted defendants from bearing the burden of paying for their own counsel, but it does shield an acquitted defendant from having to pay for a system designed to reimburse the State for expenses necessarily "incurred in the conduct of the prosecution." State v. Wallin, 89 N.C. at 580. Because the appointment fee functions to reimburse the State for expenses associated with keeping its system that provides for court-appointed counsel operational, we believe that this portion of the appointment fee is a cost of prosecution. Therefore, the appointment fee cannot be characterized as being, in part, an attorney's fee.

We next consider the State's characterization of the appointment fee as, in part, an administrative fee. The State relies on Schilb v. Kuebel, 404 U.S. 357, 92 S.Ct. 479, 30 L.Ed.2d 502, for the proposition that administrative fees are separate from costs of prosecution and, as such, can be imposed upon acquitted defendants. However, Schilb is distinguishable as to this issue. Under the statute in question in that case, the State of Illinois retained a small portion of bail posted by some criminal defendants, whatever the outcome of the case. In declining to nullify the statute, the United States Supreme Court noted that defendants had the choice of posting a property bond, a cash bond in the full amount, or a percentage of the cash bond, and that a portion was retained only when the defendant elected to post a percentage of the cash bond. Schilb v. Kuebel, 404 U.S. at 366, 92 S.Ct. at 485, 30 L.Ed.2d at 512. Thus, only those Illinois defendants who sought the benefit of posting a percentage were required to pay the administrative costs. Schilb v. Kuebel, 404 U.S. at 370-71, 92 S.Ct. at 487-88, 30 L.Ed.2d at 514. In contrast, an indigent defendant in North Carolina who seeks court-appointed counsel has no alternative that would allow him or her to avoid paying the appointment fee. Consequently, we do not believe that Schilb controls.

We find more useful direction by analogizing this part of the appointment fee to the "facilities fee," which is a cost imposed upon a defendant who is convicted or enters a plea of guilty or nolo contendere in a criminal action. N.C.G.S. § 7A-304(a)(2) (2003). The facilities fee reimburses counties for "providing, maintaining, and constructing adequate courtroom and related judicial facilities." Id. Even though the facilities fee is purely administrative...