Only the Non-Indigent may pay for Extradition Costs

State v. Anzalone (HSC February 14, 2018)

Background. Dawn Anazalone was charged with custodial interference in the first degree. She was arrested in Florida and extradited back to Hawaii pursuant to an arrest warrant issued by the family court. She did not challenge the extradition. She pleaded no contest pursuant to a plea agreement with the prosecution. At sentencing, Anzalone moved to defer acceptance of her no-contest plea. The prosecution requested the Court to order that she pay the $4,581.93 in costs and expenses for extraditing her. Over Anzalone’s objection the family court denied the motion for deferral and ordered she pay the total costs in extradition as restitution to the State, ordered payment in the amount of $50 per month as a condition of her probation, and issued repayment as a free-standing order. Anzalone appealed. The ICA concluded that the family court erred in considering the extradition cost as restitution, but concluded that it could be imposed as a condition of probation. Anzalone petitioned to the HSC.

Who pays to get the Defendant into Court? An obscure statute regulates payment for extradition costs:

Whenever the presence of a defendant in a criminal case . . . who is outside the judicial circuit is mandated by court order or bench warrant to appear, the cost of airfare, ground transportation, any per diem for both the defendant or petitioner and sufficient law enforcement officers to effect the defendant’s or petitioner’s return, shall be borne by the State. . . . The court may order the nonindigent defendant or petitioner who has returned to the State of Hawaii to reimburse the State for the costs of such extradition or return as specifically described above.

HRS § 621-9(b). The HSC first held that arrest warrant that triggered the extradition was a “court order” that mandated Anzalone’s appearance. The warrant itself ordered law enforcement officers to “bring the defendant to the Circuit Court of the Second Circuit, Hoapili Hale, 2145 Main Street, Wailuku, Maui, Hawaii, for Arraignment and Plea” before the family court. It mandated officers to find Anzalone and bring her to court. Thus, the statute applied.

Costs of Extradition are Borne by the State . . . Typically. The HSC held that the plain language of the statute prohibits the court from ordering the defendant to bear the costs of extradition unless the court finds the defendant non-indigent. “Courts are bound, if rationale and practicable, to give effect to all parts of a statute and no clause, sentence or word shall be construed as superfluous, void or insignificant if construction can be legitimately found which will give force to and preserve all words of the statute.” State v. DeMello, 136 Hawaii 193, 195, 361 P.3d 420, 422 (2015).

The HSC also found support in legislative history. The legislature, according to the HSC, was concerned about courts unfairly burdening indigent defendants. Thus, it wrote the statute so that the court could impose its discretion in having the defendant bear the costs only when it finds that the defendant is not indigent. If the defendant is indigent, then the costs are borne by the State.

Determining Indigency. The statute provides no guidance for determining indigency. Trial courts in other contexts rely on a bevy of factors:

(1) the defendant’s income (gross income minus withholding taxes, where applicable) from all sources; (2) the defendant’s fixed monthly expenditures, “especially those which are reasonably necessary to provide him and his dependents with the necessities of life”; (3) the defendant’s assets and investments; (4) the nature and extent of the defendant’s fixed liabilities; (5) the defendant’s borrowing capacity and the extent to which such borrowing would affect his or her fixed monthly obligations and his or her future financial situation; (6) in certain limited circumstances, the defendant’s real property and personal property; and (7) other factors that may bear upon the defendant’s indigency.

State v. Mickle, 56 Haw. 23, 26-28, 525 P.2d 1108, 1111-12 (1974). It is the defendant who has this information. Id.

The HSC held that when there is a request that the defendant pay for extradition pursuant to HRS § 621-9(b), the defendant bears the initial burden of producing evidence showing that he or she is indigent. Facts can come from the record such as the presentence investigation report or the fact that the defendant has court-appointed counsel or represented by the Office of the Public Defender. Once the defendant produces this evidence, the burden of persuasion moves to the prosecution to demonstrate that the defendant is not indigent. If the prosecution can prove it, then the question of payment is still left to the discretion of the court.

Here, the family court failed to inquire if Anzalone was indigent. The record strongly suggested that she was. She had court-appointed counsel. She was looking for “more permanent housing” and working at a “hat store.” Thus, the family court erred in ordering that she pay extradition costs without first inquiring into her indigency.