State v. Morgan

State v. Morgan (2000-343); 173 Vt. 533; 789 A.2d 928

[Filed 19-Dec-2001]


                                 ENTRY ORDER

                       SUPREME COURT DOCKET NO. 00-343

                             JANUARY TERM, 2001


State of Vermont	                }	APPEALED FROM:
                                        }
                                        }
     v.	                                }	District Court of Vermont,
                                        }	Unit No. 3, Franklin Circuit
                                        }
Seth Morgan	                        }	DOCKET NO. 931-7-00 Frcr

                                                Trial Judge: Charon A. True


             In the above-entitled cause, the Clerk will enter:


       Defendant Seth Morgan appeals from a district court order that
  requires defendant to pay the  clerk of the court $513.00 within sixty days
  to repay the State for the services of appointed counsel.   He contends
  that he has no ability to pay this money.  We reverse and remand for
  additional findings.

       Before considering the circumstances of this case, we examine the
  statutory framework for  appointment of counsel.  The public defender
  statute creates a three-step procedure for consideration  of the
  applicant's financial circumstances.  In the first step, the court
  determines whether the  applicant is needy by considering the applicant's
  income, assets, outstanding obligations and number  of dependents.  13
  V.S.A. § 5236(b).  "A needy person is a person who at the time of need 
  assessment is financially unable, without undue hardship, to provide for
  full payment of an attorney  and all other necessary expenses of
  representation or who is otherwise unable to employ an attorney."  A.O. 4 §
  5(b).  If the applicant is determined to be needy and is charged with a
  serious offense, then  the court will assign counsel.

       In the second step, the court determines the applicant's ability to
  pay for all or part of the  defender services.  13 V.S.A. § 5238(b).  At
  this step, the income of the applicant's cohabitating  family members is
  deemed to be income of the applicant.  Id.; A.O. 4 § 5 (d).  Any applicant
  whose  income is above 125% of the federal poverty guidelines is presumed
  able to pay part of the cost of  services.  Id.  The statute sets forth the
  repayment amount, according to income, as a percentage of  the average
  direct cost of representation per case.  13 V.S.A. § 5238(c).  In the third
  step, the court  designates the repayment amount as a co-payment, which
  must be paid prior to assignment of  counsel, id. § 5238(d), as
  reimbursement, which must be paid within sixty days of the order, id. § 
  5238(e), or partially co-payment and partially reimbursement.

       An applicant who has been ordered to make a co-payment or
  reimbursement may petition the  court at any time for remission of all or
  part of the amount on the ground that it will impose a  manifest hardship
  on the applicant or the applicant's family.  See id. § 5238(f).  The
  applicant may  also appeal a co-payment or reimbursement order to a single
  justice of this Court.  Id. § 5338(h).  

 

       In this case, defendant was charged with burglary of an occupied
  dwelling in violation of 13  V.S.A. § 1201(c).  On July 17, 2000, at his
  initial appearance, he applied for public defender  services.  His
  application form indicates that he was eighteen years old and had had no
  income in the  previous twelve months.  It also states that there are five
  other people in his household: mother, step-father, grandmother,
  grandfather, and uncle.  Gross income from wages of the cohabitants during
  the  last twelve months was $42,576.00, although these wages appear to be
  only those of mother and  stepfather.  Under assets, the form lists three
  vehicles, two valued at $5,000 and $10,000  respectively, and one on which
  $2,370 is owing and no net worth is indicated.  There are also two  bank
  accounts listed: defendant's account with $8.23 and the cohabitants'
  savings account with  $1071.00.  Under monthly expenses, defendant has
  indicated that he has $162 of expenses per month  for automobile insurance,
  life insurance and motor vehicle loan payment.  He lists no other expenses. 
 
       The court made no further inquiry.  Based on the information in the
  application, the court  found that defendant is a needy person because he
  does not have sufficient assets or income to retain  counsel.  Because
  defendant is needy and is charged with a serious offense, the court ordered 
  assignment of counsel.  The court, however, ordered defendant to pay
  $513.00 - 100% of the average  direct cost of representation - for the
  services of assigned counsel.  All of the $513 was designated a 
  reimbursement due within sixty days of the order.

       Defendant appealed to this Court, stating "I am 18 years old and I
  don't have a job and have  no means of being able to pay this money."  He
  indicates that his mother and stepfather are allowing  him to live with
  them until he gets his diploma, a job and a place of his own.  Nonetheless,
  according  to defendant, they do not support him.  Upon receiving this
  notice of appeal, this Court, in a single-justice decision, requested that
  the Defender General submit a brief addressing the constitutionality  of 13
  V.S.A. § 5238(b) and A.O. 4 § 5(d), which require, in determining the
  reimbursement amount,  that "income of the applicant's cohabitating family
  members shall be deemed to be income of the  applicant."  A.O. 4 § 5(d). 
  The Defender General has filed an amicus brief, arguing that the rule 
  violates defendant's rights under the Due Process Clause and the Sixth
  Amendment of the United  States Constitution.  

       In Fuller v. Oregon, 417 U.S. 40 (1974), the United States Supreme
  Court considered the  constitutionality of an Oregon reimbursement statute
  that allowed the court to require a convicted  defendant to repay the costs
  for services of appointed counsel.  The Oregon statute provided two 
  safeguards: (1) "a court may not order a convicted person to pay these
  expenses unless he 'is or will  be able to pay them,' " and (2) "a
  convicted person under an obligation to repay 'may at any time  petition
  the court which sentenced him for remission of the payment of costs or of
  any unpaid  portion thereof.' " Fuller, 417 U.S.  at 45.  Thus,
  "[d]efendants with no likelihood of having the means  to repay are not put
  under even a conditional obligation to do so, and those upon whom a
  conditional  obligation is imposed are not subject to collection procedures
  until their indigency has ended and 'no  manifest hardship' will result."
  Id. at 46.  

       The petitioner in Fuller argued that the recoupment statute impinged
  on his constitutional  right to have counsel provided by the State because
  the knowledge that he might be obligated to  repay the State might impel
  him to decline the services, thus chilling his constitutional right to 
  counsel.  The Court disagreed.  Noting that the reimbursement provisions in
  no way affected 

 

  eligibility for appointed counsel, it held that there was no constitutional
  requirement that indigent  defendants must remain forever immune from any
  obligation to shoulder the expenses of legal  defense even when they become
  able to pay without hardship.  Id. at 53-54.   In reaching this  decision,
  the Court emphasized the statute was "tailored to impose an obligation only
  upon those  with a foreseeable ability to meet it and to enforce that
  obligation only against those who actually  become able to meet it without
  hardship."  Id. at 54. 

       In view of Fuller, we hold that, under the Sixth Amendment to the
  United States  Constitution, before imposing an obligation to reimburse the
  State, the court must make a finding  that the defendant is or will be able
  to pay the reimbursement amount ordered within the sixty days  provided by
  statute. (FN1*)  In many cases, it will be evident from the information
  provided by the  defendant on the application form whether the defendant
  will have the ability to pay. In this case,  however, it is not.  The
  application here raises as many questions as it answers.  For example, the 
  form indicates that defendant has no income but pays $162 per month for
  automobile insurance, life  insurance and automobile loan payments. 
  Further, the application indicates that defendant has no  expenses for
  food, rent or clothing.  Despite the incomplete information, the court did
  not request a  sworn explanation of how defendant survives without income,
  although the application indicates that  it may do so, presumably because
  the application indicates that defendant lives with his parents. 

       Although the "income of the applicant's cohabitating family members
  shall be deemed to be  income of the applicant," A.O. 4 § 5(d), to meet
  constitutional muster, the court must make the  finding that the defendant
  is or will be able to pay the repayment amount within the sixty days.  We 
  distinguish this case from one in which the applicant is a juvenile, in
  which case, the court may not  order the juvenile to pay any part of the
  costs of representation, see 13 V.S.A. § 5238(g), but may  order the
  parents to repay the State as a necessity for which parents are liable. 
  See In re J.B., 157 Vt.  668, 669, 603 A.2d 368, 369 (1991) (mem.)
  (single-justice decision).  Here, the parents have no legal  obligation to
  support their eighteen-year-old son.  Thus, while the court must consider
  the parents'  income under the statute, it must also make the
  constitutionally required finding that defendant will  be able to repay the
  reimbursement amount within sixty days.  Here, the court failed to do so. 
  Cf. Ex  Parte Sanders, 612 So. 2d 1199, 1201 (Ala. 1993) (requiring State to
  pay for indigent defendant's  expert although defendant's family, without
  legal obligation to do so, was paying for counsel); State  v. Gardner, 626 S.W.2d 721, 724 (Tenn. Crim. App. 1981) (requiring appointment of counsel
  for  indigent defendant although father could have hired attorney because
  father had no 

 

  such legal duty).

       On appeal, defendant has asserted the additional facts that he does
  not have a job and is living  with his parents until he gets his diploma. 
  His application, however, was filed in July, so it is not  apparent that
  defendant was actually enrolled in school at the time it was filed, and
  thus, does not  explain why he does not have a job.  In sum, we must
  conclude that neither the evidence nor the  findings are adequate to
  determine whether defendant will have the ability to pay the $513 within
  the  sixty days.  Thus, we remand for further findings.

       We address one final issue.  The State has argued that this case
  should be dismissed because  defendant failed to exhaust his remedies
  before the trial court before bringing this appeal.  It points to  13
  V.S.A. § 5238(f), which provides:

    A person who may be or has been ordered to pay all or part of the 
    cost of representation by co-payment or reimbursement order may at 
    any time petition the court making the order for remission of all
    of the  amount or any part thereof.  If it appears to the
    satisfaction of the  court that payment of the amount due will
    impose manifest hardships  on the defendant or the defendant's
    immediate family or that  circumstances of case disposition and
    the interests of justice so  require, the court may remit all or
    part of the amount due or modify  the method of payment.

  Thus, the State contends that, before appealing to this Court, a defendant
  must move before the trial  court for remission of all or part of the
  reimbursement amount.  In general, we agree.  In this case,  however, we do
  not . 

       In upholding the Oregon statute in Fuller, the Court relied upon two
  statutory safeguards to  protect the interests of indigent defendants.  One
  safeguard allowed a defendant to petition the court  at any time for
  remission of the reimbursement amount or any unpaid portion thereof. 
  Fuller, 417 U.S.  at 45. That provision is similar to § 5238(f).  But the
  other safeguard required, as a condition  necessary for the initial
  imposition of the reimbursement obligation, is a finding that the defendant
  is  or will be able to pay the reimbursement amount.  The Vermont statute
  has no analogous provision.   We conclude, however, that the requirement of
  the initial finding prior to imposition of any  repayment obligation was
  necessary to the Fuller decision, and thus, we require this finding under
  the  Sixth Amendment.

       We will not require defendant to raise the ability-to-pay issue under
  subsection (f) prior to  appealing because his claim is that the court is
  required to make the ability-to-pay finding before  imposing any
  reimbursement obligation in the first instance.  Requiring a subsection (f)
  request  before an appeal in this case would impose upon defendant the very
  procedure that he challenges - and we have agreed - by shifting the burden
  of raising the issue in the first instance from the court to  defendant. 

       Reversed and remanded.

 

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                                 Dissenting


       MORSE, J., dissenting.  I would affirm.  By ordering reimbursement,
  the trial court  implicitly made a finding that defendant individually
  would be able to reimburse.  See 13 V.S.A.  § 5238(b) (court shall order a
  defendant to pay for all or part of the cost of representation "based  upon
  his or her ability to pay") (emphasis added).  It did so under the statute
  that presumes that the  income of a defendant's cohabiting family members
  is available to a defendant when making a  determination regarding ability
  to pay.  See id.; see also A.O. 4 § 5(d) (for purposes of co-payment  and
  reimbursement determinations, income of an applicant's cohabiting family
  members is deemed  available to the applicant); State v. Bailey, 165 Vt.
  579, 579, 682 A.2d 1387, 1387 (1996) (mem.)  (trial court may not consider
  income of cohabiting family members in determination of whether a 
  defendant is needy and therefore entitled to appointment of counsel, but
  may do so in determining  co-payment and reimbursement amounts). 
  Furthermore, it is generally accepted that it is defendant's  burden to
  demonstrate the inability to pay for counsel.  See, e.g., Nikander v. Dist.
  Court, 711 P.2d 1260, 1262 (Colo. 1986); State v. Smith, 677 A.2d 1058,
  1060 (Me. 1996); State v. Vincent, 883 P.2d 278, 283 (Utah 1994).  The
  trial court simply evaluated the information presented on  defendant's
  application for appointed counsel in light of defendant's burden, as well
  as the  presumption described above.

       Notably, if, as alleged on appeal, it would be a hardship for
  defendant to reimburse because  he does not in fact receive support from
  his family, defendant has an opportunity to present that  information to
  the trial court in a petition for remission, and the trial court may amend
  its order.  See  13 V.S.A. § 5238(f) (court may remit all or part of amount
  due from defendant if it will impose  manifest hardship on the defendant or
  the defendant's immediate family).  These facts, however,  were not
  presented to the trial court in any form by defendant, and we may not
  consider them here.

       The court here properly followed the statutory scheme in issuing its
  reimbursement order,  including the portion of the scheme that creates a
  presumption that the income of cohabiting family  members is available to
  the defendant. (FN1)  If the statutory scheme is constitutional, then the
  order  should be affirmed.  If, conversely, the statutory scheme is
  unconstitutional, as the majority seems to  imply, then the Court should
  make that explicit. (FN2)  That is the very question we asked the parties 

 

  to brief.  I believe the scheme is constitutional, and would thus affirm.

       On a general level, our statutory scheme does not impinge on a
  defendant's Sixth Amendment  right to counsel under Fuller v. Oregon.  As I
  described above, our statute only allows a  reimbursement order based on a
  judicial determination of an individual's ability to pay.  Furthermore,  it
  affords a defendant the opportunity to seek remission if the order would
  create undue hardship for  the defendant or the defendant's family.  It was
  these two attributes that the United States Supreme  Court found essential
  to a constitutional reimbursement scheme under the Sixth Amendment.  See 
  Fuller v. Oregon, 417 U.S. 40, 45-46, 53-54 (1974) ("Oregon's legislation
  is tailored to impose an  obligation only upon those with a foreseeable
  ability to meet it, and to enforce that obligation only  against those who
  actually become able to meet it without hardship.").  Thus, I do not
  believe that  our scheme impermissibly chills a defendant's right to
  appointed counsel.

       Nor do I believe considering the income of third parties, including
  family members, in a  determination of an individual defendant's ability to
  repay the government violates any constitutional  principle, as long as
  that money is available to the defendant.  In interpreting the federal
  Criminal  Justice Act, which allows for reimbursement of the government for
  the costs of assigned counsel, 18  U.S.C. § 3006A(f) (allowing court to
  order reimbursement if it determines that sometime subsequent  to the
  assignment of counsel "funds are available for payment from or on behalf of
  a person  furnished representation"), courts have made clear that the
  dispositive issue regarding whether third-party funds should be considered
  in such a determination is whether the funds are available to or  within
  the control of a defendant.  See, e.g., United States v. Bracewell, 569 F.2d 1194, 1198-00 (2d  Cir. 1978) (noting that claims to funds, which had
  been seized by the government, made by  defendant's family members should
  be considered in determining whether those funds were available  to
  defendant in case where court made no inquiry or determination regarding
  defendant's financial  status before ordering reimbursement under CJA);
  United States v. Bursey, 515 F.2d 1228, 1239 (5th  Cir. 1975) (under CJA,
  government could not automatically seize $1000 bond deposit posted by 
  adult defendant's parents for reimbursement of costs of court-appointed
  counsel based on conclusive  assumption money was within defendant's
  control; rather, hearing was necessary to determine  whether this money was
  available to the defendant); Ybarra v. Wolff, 571 F. Supp. 209, 212-13 (D. 
  Nev. 1983) (ordering reimbursement by defendant under CJA where a number of
  assets were held by  wife and wife admitted to court that she was holding
  one-half of everything in her possession for  defendant); see also United
  States v. Salemme, 985 F. Supp. 197, 201, 203 (D. Mass. 1997) (noting 
  that, in determining whether a defendant is eligible for appointed counsel
  under CJA, court should  determine whether income is available to defendant
  from other sources - court ordered defendant to  disclose all funds
  available to him for his defense from "family, friends, trusts, or
  estates"); United  States v. Robinson, 718 F. Supp. 1582, 1583 (M.D. Ga.
  1989) (determining that defendant had failed  to demonstrate a financial
  inability to retain counsel on appeal under CJA where an unidentified third 
  party had paid $9000 cash on defendant's behalf to retain trial counsel). 
  I have yet to uncover a case  holding that consideration of income
  available to a defendant from third parties in making a  reimbursement
  order violates a constitutional provision.

 

       The question, then, is this: do those portions of our statutory scheme
  that provide for a  presumption that the income of cohabiting family
  members is available to an individual defendant at  the reimbursement
  stage, but also afford defendants an opportunity to demonstrate otherwise
  at the  remission stage, deprive defendants of procedural due process?  I
  believe the answer is "no."

       A reimbursement order such as this is in the nature of a civil
  judgment. (FN3)  As such, the  proper due process analysis is that applied
  to evidentiary presumptions in the civil context.  The  United States
  Supreme Court has stated:

    That a legislative presumption of one fact from evidence of
    another  may not constitute a denial of due process of law or a
    denial of the  equal protection of the law it is only essential
    that there shall be some  rational connection between the fact
    proved and the ultimate fact  presumed, and that the inference of
    one fact from proof of another  shall not be so unreasonable as to
    be a purely arbitrary mandate.  So,  also, it must not, under
    guise of regulating the presentation of  evidence, operate to
    preclude the party from the right to present his  defense to the
    main fact thus presumed.

  Mobile, Jackson & Kansas City R.R. Co. v. Turnipseed, 219 U.S. 35, 43
  (1910), quoted in Usery v.  Turner Elkhorn Mining Co., 428 U.S. 1, 28
  (1976); see also Vance v. Terrazas, 444 U.S. 252, 267-70  (1980)
  (evaluating rationality of a presumption mandated by statutory scheme
  governing loss of  United States citizenship); Keith Fulton & Sons, Inc. v.
  New England Teamsters & Trucking Indus.  Pension Fund, Inc., 762 F.2d 1137,
  1143-46 (1st Cir. 1985) (evaluating rationality of statutory  presumption
  of reasonableness created under statutory scheme governing multiemployer
  pension  plans); DiLoreto v. Fireman's Fund Ins. Co., 418 N.E.2d 612,
  615-16 (Mass. 1981) (evaluating under  due process clause insurance
  regulation creating presumption of fault regarding certain types of 
  automobile accidents).

       It is both reasonable and rational to draw an inference that, if
  family members are cohabiting,  they are likely sharing resources, see
  State v. Vincent, 883 P.2d 278, 283 n. 6 (Utah 1994) (noting  with approval
  trial court's conclusion that two individuals living together as a family,
  although not

 

  married, formed an economic unit; thus, both incomes could be considered in
  making indigency  determination), in other words, to presume that
  cohabiting family members' income is available to a  defendant. 
  Furthermore, this presumption only operates at the preliminary stage of
  determining  whether and in what amount a defendant ought to reimburse the
  state for court-appointed counsel.   The statutory scheme affords a
  defendant an opportunity to contest this conclusion via a petition for 
  remission.  Although it may be preferable for this opportunity to come
  prior to any order of  reimbursement, I believe the current procedure is
  constitutionally adequate.  Cf. State v. Blank, 930 P.2d 1213, 1218-21
  (Wash. 1997) (concluding that neither the Sixth Amendment nor due process 
  requires a determination of ability to pay prior to a recoupment order as
  long as an opportunity to  demonstrate an inability to pay exists at the
  enforcement stage); see also State v. Albert, 899 P.2d 103, 109-13 (Alaska
  1995) (concluding that Sixth Amendment does not require a determination of 
  ability to pay prior to issuing a recoupment order as long as safeguards
  are in place to prevent  economic hardship to a defendant or a defendant's
  family, and holding that state statute that provided  a hearing on ability
  to pay only if requested by defendant constitutional).  "Finding the best
  method  . . . is not our function; under the due process precedents which
  guide us, we must only find that [the  Legislature] acted rationally in
  designing the procedure [at issue.]"  Keith Fulton & Sons, 762 F.2d  at 
  1144.

       Thus, because I do not believe our statutory scheme suffers from a
  constitutional infirmity  and because the trial court adhered to the
  statutory scheme in issuing its reimbursement order, I  respectfully
  dissent.  I would affirm the order, knowing that the defendant may still
  seek remission  based on the facts he alleges on appeal.  I am authorized
  to say that Justice Skoglund joins in this  dissent.




  Dissenting:	                        BY THE COURT:


  ________________________________	_______________________________________
  James L. Morse, Associate Justice	Jeffrey L. Amestoy, Chief Justice

  ________________________________	_______________________________________
  Marilyn S. Skoglund,                  John A. Dooley, Associate Justice
  Associate Justice	

                                        _______________________________________
                                        Denise R. Johnson, Associate Justice



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                                  Footnotes

FN1*.  Contrary to the dissent's assertion, we do not hold that a hearing
  is required to make an  independent determination of whether the family
  members' income is available to defendant  irrespective of whether
  defendant contests that fact.  As noted above, the constitutionally
  required  finding, that defendant is able to pay the reimbursement amount
  within the 60 days, can ordinarily be  made from the information provided
  by the defendant on the application form.  It may be - as dissent 
  speculates - that a cost-benefit analysis will ultimately demonstrate that
  the resources expended to  recoup the cost of representation for defendants
  similarly situated to the defendant here undermine  the program's
  reimbursement objective.  That speculation is, of course, not relevant to
  the  constitutional requirement that, before imposing an obligation to
  reimburse the State for the cost of  representation, the court must make a
  finding that the defendant is or will be able to pay the  reimbursement
  amount ordered.


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                           Footnotes (Dissenting)

FN1.  I take issue with the Court's observation that the trial court
  "made no further inquiry"  beyond the information provided by the defendant
  on his application.  Although a court may make  inquiry, there is no
  obligation under the statute to go behind the facts recited in the
  application for  appointment of counsel.  There was sufficient information
  before the court to support the order in  this case under the statutory
  scheme.

FN2.  I read the Court's opinion to hold that the statutory scheme is
  constitutional only if a trial  court holds a hearing to make an
  independent determination of whether the family members' income  is
  available to defendant before issuing a reimbursement order, regardless of
  whether defendant  contests that fact, rather than doing so at the
  remission stage.  In effect, the court holds that the  statutory
  presumption is unconstitutional.  I disagree as I discuss infra.  I
  understand the Court's  desire to insure that a defendant is not unfairly
  saddled with the cost of appointed counsel when the  defendant is
  financially unable to meet that obligation.  Nevertheless, if doing so
  entails using up  more of the State's resources, including court time as
  well as attorney time, I question whether the  program's goal of recouping
  resources is served.  Rather than wasting precious court and attorney  time
  attempting to get water from a stone, perhaps we should just accept such
  costs as the price of  protecting individuals' constitutional rights.

FN3.  This is in contrast to the portion of the statutory scheme
  providing that such an order  automatically becomes part of a defendant's
  sentence, if convicted, and is enforceable as a condition  of probation,
  supervised community service or parole.  13 V.S.A. § 5240(d).   The
  constitutionality  of that provision is not before us in the case at hand. 
  Cf. Basaldua v. State, 558 S.W.2d 2, 7 (Tex.  Crim. App. 1977) (holding
  statutory scheme, which provided for automatic assessment of cost of 
  court-appointed counsel against defendant upon conviction and allowed court
  to make repayment a  condition of probation without regard to ability to
  pay, was consistent with constitution where  defendant's probation could
  not be revoked unless failure to make payment was intentional and 
  defendant was able to make payment); see also Bearden v. Georgia, 461 U.S. 660, 672-73 (1983)  (holding that probation may not be revoked for failure
  to pay a fine or restitution, if such failure is  based solely on an
  individual's indigency, and requiring that an inquiry be made into such
  matters  prior to any revocation).