Vasquez v. Cooper, 86-1076

• Decision Date: 30 November 1988
• Docket Number: No. 86-1076,86-1076
• Citation: 862 F.2d 250
• Parties: Paul Luna VASQUEZ, Petitioner-Appellant, v. Thomas COOPER, et al., Respondents-Appellees.
• Court: U.S. Court of Appeals — Tenth Circuit

Page 250

862 F.2d 250

Paul Luna VASQUEZ, Petitioner-Appellant, v. Thomas COOPER, et al., Respondents-Appellees.

No. 86-1076.

United States Court of Appeals, Tenth Circuit.

Nov. 30, 1988.

Brian K. Holland (Michael G. Katz, Federal Public Defender, of Denver, Colo., with him on the briefs), Asst. Federal Public Defender, Denver, Colo., for petitioner-appellant.

John Milton Hutchins (Duane Woodard, Atty. Gen., Charles B. Howe, Deputy Atty. Gen., and Richard H. Forman, Sol. Gen., with him on the briefs), First Asst. Atty. Gen., Denver, Colo., for respondents-appellees.

Before LOGAN, McWILLIAMS and TACHA, Circuit Judges.

TACHA, Circuit Judge.

This is an appeal from the denial of a petition for writ of habeas corpus by the United States District Court for the District of Colorado. The issue on appeal is whether the fourteenth amendment requires that a state prisoner receive credit against his sentence for all presentence time spent in custody due solely to his inability to post bail, when the sentencing judge considers such presentence time in determining the sentence and the sentence given is within the statutory maximum. We affirm.

Vasquez was arrested on December 10, 1976. He was held for 284 days prior to trial and sentencing because he was unable to post bail. On September 22, 1977, a jury found Vasquez guilty of manslaughter. He was sentenced under Colorado's habitual criminal statute to a twenty-five- to forty-year term of imprisonment, a term well within the fifty-year maximum allowable by law. See Colo.Rev.Stat. Sec. 16-13-101 (1986). The sentencing judge stated in the judgment that "consideration was given for the time the defendant was incarcerated pending sentencing on the present charges" and that "[t]he court does not credit the defendant with any time previously served."

Vasquez contends that his sentence is unconstitutional because the judge refused to credit his sentence for the time he spent in custody prior to sentencing. He alleges that the refusal of credit caused him to spend more time in prison than would a wealthier person who could have posted bail, and that a disparate sentence was therefore imposed on him in violation of the equal protection clause of the fourteenth amendment. We disagree.

As outlined by the Supreme Court, "we generally analyze the fairness of relations between the criminal defendant and the State under the Due Process Clause, while we approach the question whether the State has invidiously denied one class of defendants a substantial benefit available to another class of defendants under the Equal Protection Clause." Bearden v. Georgia, 461 U.S. 660, 665, 103 S.Ct. 2064, 2068, 76 L.Ed.2d 221 (1983). Because equal protection and due process interests may be implicated here, we analyze Vasquez' claims under both the equal protection and due process clauses of the fourteenth amendment.

I. Equal Protection

Unless it provokes strict judicial scrutiny, a state practice that distinguishes among classes of people will typically survive an equal protection attack so long as the challenged classification is rationally related to a legitimate governmental purpose. Kadrmas v. Dickinson Pub. Schools, --- U.S. ----, 108 S.Ct. 2481, 2487, 101 L.Ed.2d 399 (1988). A state practice will not require strict judicial scrutiny unless it interferes with a "fundamental right" or discriminates against a "suspect class" of individuals. Id. We conclude that Vasquez has failed to show that he is a member of a suspect class, or that he was denied a fundamental right. Thus, strict scrutiny is not required. In order for Vasquez to prevail on an equal protection theory, he therefore must show that he is a member of a class that was denied a benefit available to other similarly situated individuals, and that such a denial is not rationally related to legitimate state interests. Vasquez fails to do so.

We begin with a careful restatement of our understanding of Vasquez' equal protection claim. Vasquez claims that he is a member of a class of persons who were denied the benefit of release on bail prior to trial. This denial of liberty through release on bail, he claims, was on account of indigence, because a wealthier person could have posted bail and obtained release from custody prior to conviction and sentencing. Vasquez attempts to extend to the sentencing phase his claim of denial of liberty based upon indigence. He claims that the denial of "credit" at the sentencing phase automatically causes him to spend a longer time in custody than a wealthier person who could obtain pretrial release on bail. He therefore concludes that he was deprived of liberty solely on account of indigence in violation of the equal protection clause of the fourteenth amendment.

Vasquez' equal protection theory is flawed in two significant respects. First, Vasquez attempts to equate indigence with membership in the class of persons who remain in pretrial confinement because they could not post bail. As a theoretical matter, one need not be indigent to be unable to post bail. The judge setting bail considers each defendant individually to determine the level of bail deemed necessary to satisfy the state's regulatory interest in ensuring a defendant's presence at trial. A person could have considerable assets, and yet be unable to post the level of bail that a judge has determined necessary to prevent flight. Although Vasquez could claim that indigents who were denied credit for pretrial confinement were treated disparately at sentencing from nonindigents, we find no basis in this record for such a distinction. The proper definition of the affected class in this case is persons who were subject to pretrial confinement because they could not post bail, and who were denied credit against their sentence for such pretrial confinement. Vasquez has not shown that as a member of this class he was denied credit and thereby served a longer sentence solely due to indigence, because nonindigents subject to pretrial confinement are theoretically also members of this class.

Even if we assume arguendo that the operation of bail requirements discriminate in effect against indigents, see Williams v. Illinois, 399 U.S. 235, 242, 90 S.Ct. 2018, 2022, 26 L.Ed.2d 586 (1970), and that Vasquez could not post bail due to his indigence, ¹ thereby making him a member of a class of indigent persons who were held in pretrial confinement because they could not post bail, Vasquez' theory is flawed for a second reason: Vasquez has not shown that he was denied a benefit due to his impecunity. He fails to meet the test articulated by the Supreme Court for determining whether a classification based on wealth violates the equal protection clause:

The individuals, or groups of individuals, who constituted the class discriminated against in our prior cases shared two distinguishing characteristics: because of their impecunity they were completely unable to pay for some desired benefit, and as a consequence, they sustained an absolute deprivation of a meaningful opportunity to enjoy that benefit.

San Antonio School Dist. v. Rodriguez, 411 U.S. 1, 20, 93 S.Ct. 1278, 1289, 36 L.Ed.2d 16 (1973). ²

Regardless of whether the standard of review is rational basis or strict scrutiny, Vasquez has failed to show that the sentencing judge invidiously denied any benefit that was available to others solely because he was indigent, or because he was a member of the putative class of persons who were subject to pretrial confinement. Any discrimination by denial of the benefit of bail does not necessarily extend to the sentencing phase in which the judge considers anew the background of each individual, including whether he was held in pretrial confinement, in light of the penological interests of the state.

The sentencing judge's action here, considering the presentence time served and denying credit, did not amount to an impermissible classification denying Vasquez of his liberty interest. By considering the time Vasquez spent in jail in determining the length of sentence, the judge effectively put Vasquez in the same position as those who were released on bail--the total time during which liberty would be deprived in both cases is specifically considered by the judge. Requiring the judge to determine the sentence necessary to serve the state's penological interests by disregarding the time previously served by the defendant, and then mechanically subtracting that time from the sentence given, would be an artificial and meaningless exercise. ³ By considering the presentence time the judge actually equalizes the defendants' treatment. Therefore, Vasquez has not shown that he was subjected to a longer prison sentence than a wealthier person punished for the same crime. There is no differential treatment for purposes of the equal protection clause.

Vasquez mistakenly relies upon several Supreme Court cases to support his equal protection claim: Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983) (indigent's probation revoked because of inability to pay fine); Tate v. Short, 401 U.S. 395, 91 S.Ct. 668, 28 L.Ed.2d 130 (1971) (statute provides only for fines; indigent unable to pay traffic fines and imprisoned); and Williams v. Illinois, 399 U.S. 235, 90 S.Ct. 2018, 26 L.Ed.2d 586 (1970) (indigent failing to satisfy monetary provisions of sentence confined beyond maximum term specified by statute). Taken together, Tate and Williams "stand for the proposition that no person may be incarcerated, upon conviction of a crime, for a period longer than the maximum sentence set by statute solely on the basis of his or her inability to pay a criminal fine." Doyle v. Elsea, 658 F.2d 512, 518 (7th Cir.1981); see Bearden, 461 U.S. at 667-68, 103 S.Ct. at 2069-70. Bearden only requires that once the state has determined that its penological interests do not require imprisonment, it cannot revoke probation and require imprisonment without first...