Appeal from Superior Court, Pierce County. 92-1-04836-3. Honorable J K. Arnold, Judge.
Authored by Barbara A. Madsen. Concurring: Barbara Durham, James M. Dolliver, Charles Z. Smith, Richard P. Guy, Philip A. Talmadge. Dissenting: Gerry L. Alexander, Richard B. Sanders, Charles W. Johnson.
The opinion of the court was delivered by: Madsen
MADSEN, J. -- Defendants Blank and LeBlanc raise numerous challenges to the constitutionality of RCW 10.73.160, which allows an appellate court to order convicted indigent defendants to pay appellate costs, including the fees for appointed counsel. We find that the statute is constitutional and that it applies in Defendants' cases. We affirm the Court of Appeals decision in State v. Blank, and we grant the State's request for costs in State v. LeBlanc.
On July 29, 1993, Petitioner Blank was convicted of second degree manslaughter. The court found he was indigent; accordingly, he appealed at public expense, including representation by court appointed counsel. On October 12, 1995, the Court of Appeals affirmed Blank's conviction. *fn1 On October 18, 1995, the State submitted a cost bill pursuant to RAP 14. *fn2, RAP 14. *fn3, and RCW 10.73.160 for $3,493.26 for costs of reproduction of briefs, court appointed attorney fees, the verbatim report of proceedings, clerk's papers, and the filing fee. Blank objected to the cost bill, arguing among other things that RCW 10.73.160 is unconstitutional. Division Two of the Court of Appeals upheld the constitutionality of the statute, granted the costs requested by the State, and remanded for entry of the recoupment order as part of the judgment and sentence. State v. Blank, 80 Wash. App. 638, 910 P.2d 545 (1996). Blank then sought review. This court granted his motion for discretionary review on June 4, 1996.
Appellant LeBlanc was convicted on November 19, 1992, of four counts of armed robbery and he was sentenced to concurrent terms of 120 months' confinement on each count. He was also ordered to pay court costs, a victim assessment, and restitution. The court found LeBlanc indigent, and his appeal was therefore at public expense, including court appointed counsel. Division One of the Court of Appeals affirmed LeBlanc's conviction on August 21, 1995.2 The State filed a timely cost bill pursuant to RAP 14 and RCW 10.73.160, seeking $5,290.263 for costs of reproduction of briefs, court appointed attorney fees, the verbatim report of proceedings, clerk's papers, and the filing fee. LeBlanc objected to the cost bill, arguing among other things that RCW 10.73.160 is unconstitutional. The Court of Appeals requested supplemental briefing on the issue. When this court granted Blank's motion for discretionary review on June 4, 1996, it also ordered that the pending matter in LeBlanc be transferred from the Court of Appeals and consolidated with Blank's case for purposes of review.
In each of these cases, Defendants' appeals were pending when RCW 10.73.160 was enacted. The Court of Appeals decisions affirming the convictions were issued and the cost bills submitted after the statute became effective on July 23, 1995.
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).
Statutes are presumed to be constitutional. State v. Hennings, 129 Wash. 2d 512, 524, 919 P.2d 580 (1996). A party challenging the constitutionality of a statute has the heavy burden of proving its unconstitutionality beyond a reasonable doubt. Id. at 524; State v. Ward, 123 Wash. 2d 488, 496, 869 P.2d 1062 (1994). Defendants in these cases have the burden of proving any unconstitutionality of RCW 10.73.160(4). *fn4
Defendant LeBlanc maintains that RCW 10.73.160 lacks features which are required for a recoupment statute to satisfy constitutional equal protection and right to effective assistance of counsel concerns. He relies upon Fuller v. Oregon, 417 U.S. 40, 94 S. Ct. 2116, 40 L. Ed. 2d 642 (1974) and State v. Curry, 118 Wash. 2d 911, 829 P.2d 166 (1992).
In Fuller, the Court upheld an Oregon statute which required convicted defendants, as a condition of probation, to reimburse the cost of appointed counsel which had been provided because of indigency, where the defendant subsequently acquired the means to do so. The statute, the Court observed, did not make repayment mandatory. Repayment could be imposed only on a convicted defendant who "is or will be able" to pay. Fuller, 417 U.S. at 45. Further, the statute provided that the appellate court had to take into account the defendant's financial resources and the burden that payment would impose, and no repayment obligation could be imposed if there were no likelihood the defendant's indigency would end. The statute allowed the defendant to petition at any time for remission of the costs or any unpaid portion. Finally, the statute provided that no convicted person could be held in contempt for failure to repay if he showed that his default was not intentional nor the result of a failure to make a good faith effort to pay. Fuller, 417 U.S. at 46.
In upholding the statute, the Court noted that it did not suffer from infirmities identified in James v. Strange, 407 U.S. 128, 92 S. Ct. 2027, 32 L. Ed. 2d 600 (1972), where the Court relied on equal protection grounds to invalidate a recoupment statute which expressly denied exemptions to criminal defendants which were available in the case of civil judgment debtors. Fuller, 417 U.S. at 46-48. The Court also rejected the argument that the Oregon statute violated equal protection by discriminating between those defendants who are convicted and those who are not. The Court concluded that given the unavoidable dislocations and hardships which an acquitted defendant must undergo, Oregon's decision that he be free of liability to reimburse the state for the costs of his defense reflected a rational effort to achieve elemental fairness. Id. at 50.
The Court also rejected the argument that the Oregon statute violated the right to counsel because a defendant's knowledge that he might have to repay his legal representation expenses might cause him to decline appointed counsel, thus chilling his right to counsel. The Court reasoned that under Oregon's scheme the defendant is entitled to free counsel when he needs it, and the fact that he knows he may have to repay the costs of the services does not affect his eligibility to obtain counsel.
We live in a society where the distribution of legal assistance, like the distribution of all goods and services, is generally regulated by the dynamics of private enterprise. A defendant in a criminal case who is just above the line separating the indigent from the nonindigent must borrow money, sell off his meager assets, or call upon his family or friends in order to hire a lawyer. We cannot say that the Constitution requires that those only slightly poorer must remain forever immune from any obligation to shoulder the expenses of their legal defense, even when they are able to pay without hardship.
In Curry, this court considered a challenge brought under RCW 10.01.160, a statute having the same features as the Oregon statute upheld in Fuller. The court held that formal findings of fact on ability to pay are not required for recoupment of trial costs under RCW 10.01.160. The court said that imposition of a repayment obligation lies within the sound discretion of the sentencing court, with protections from abuse of that discretion provided by the statute's directive that ability to pay be considered and procedures for modification of the financial obligation for a defendant ultimately unable to pay. Curry, 118 Wash. 2d at 916. In the course of its analysis, the court said that Fuller implicitly held that several features of the Oregon statute are constitutionally required:
1. Repayment must not be mandatory;
2. Repayment may be imposed only on convicted defendants;
3. Repayment may only be ordered if the defendant is or will be able to pay;
4. The financial resources of the defendant must be taken into account;
5. A repayment obligation may not be imposed if it appears there is no likelihood the defendant's indigency will end;
6. The convicted person must be permitted to petition the court for remission of the payment of costs or any unpaid portion;
7. The convicted person cannot be held in contempt for failure to repay if the default was not attributable to an intentional refusal to obey the court order or a failure to make a good faith ...