Court Fees at Sentencing Limited to Defendant who can pay at Sentencing

 State v. Pulgados (ICA October 30, 2020)

Background. Desmond Pulgados was prosecuted for property and drug offenses in six separate cases. He and the prosecution reached a plea agreement in which Pulagdos would plead no contest to sixteen offenses and the parties agreed to recommend probation. The circuit court—the Hon. Judge Rhonda I. L. Loo presiding—sentenced Pulgados to prison for ten years instead, imposed restitution in the amount of $906.99, fined him $500, and two imposed fees: the crime victim compensation fee in the total amount of $1,575 and the internet crimes against children at $1,500.

 

Pulgados moved to waive the fees on the grounds that he could not afford to pay them. Pulgados argued there was a “presumption of indigency” based on his qualification for representation by the Office of the Public Defender and that presumption had not been rebutted at sentencing. At the hearing on the motion, Pulgados testified that he had no income, savings, checking account, real property, stocks, bonds, or any other kinds of assets. He testified that while he had no living expenses, he was living at the Halawa Correctional Facility and had been incarcerated for two years. He had not had a job in at least four years. His last job was as a shuttle driver, but since then he suffered an injury that made the possibility of returning that job unlikely. He testified that he did not have a driver’s license.

 

On cross-examination, Pulgados said hoped to find employment upon his eventual release from prison. He could read and write English and earned a GED. However, he testified he was disabled from ankle problems and believed it is “hard for a convict or a felon to get a job.” The circuit court denied the motion and found that although there might be “some medical issues,” he is otherwise healthy, young, able-bodied, educated, and willing and able to find employment after release from custody.” Pulgados appealed.

 

The Internet Crimes Against Children Fee Cannot be Imposed on Defendants who are “Unable to Pay” at Sentencing. The circuit court ordered Pulgados to pay $100 for each of the convicted offenses totaling $1,400 as part of the Internet crimes against children fee:

 

The court shall order every defendant to pay an internet crimes against children fee of up to $100 for each felony or misdemeanor conviction; provided that no fee shall be ordered when the court determines that the defendant is unable to pay the fee.

 

HRS § 846F-3(a). The ICA held that because the statute is written in the present tense with mandatory language, the sentencing court does not have discretion to impose the fee when the defendant is unable to pay at the time of sentencing. According to the ICA, nothing in the legislative history of the fee suggests it should be read differently.

 

Indigency is “the Condition of Being Unable to Pay.” According to the ICA, indigency is the condition of being “unable to pay.” Gideon v. Wainwright, 372 U.S. 335 (1963); Arnold v. Higa, 61 Haw. 203, 600 P.2d 1383 (1979). Moreover, the ICA looked factors relied on in a different context to determine indigency:

 

(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 provided 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. Anzalone, 141 Hawai'i 445, 455-456, 412 P.3d 951, 961-962 (2018). Other factors also include if the defendant had been appointed counsel throughout the proceedings. Id. at 456-457, 412 P.3d at 962-963.

 

While the ICA did not find a presumption of indigency, the ICA held that the circuit court erred. There was “overwhelming evidence” of Pulgados’s inability to pay. He hadn’t been employed since 2014 and had no income, home, or property. He was living at Halawa Correctional Facility. The circuit court should have waived the fees.

 

The Trouble with the Crime Victim Compensation Fee. The sentencing court “shall impose a compensation fee upon every person convicted of a criminal offense pursuant to section 351-62.6; provided that the court shall waive the imposition of a compensation fee if it finds that the defendant is unable to pay the compensation fee.” HRS § 706-605(6). HRS § 351-62.6(a) also limits who pays the fee:

 

The court shall impose a compensation fee upon every defendant who has been convicted or who has entered a plea under section 853-1 and who is or will be able to pay the compensation fee. . . .

. . . .

The compensation fee shall be separate from any fine that may be imposed under section 706-640 and shall be in addition to any other disposition under this chapter; provided that the court shall waive the imposition of a compensation fee if the defendant is unable to pay the compensation fee.

 

When determining the amount to be paid, the court may consider the “defendant’s earning capacity, including future earning capacity.” RHS § 351-62.6(b).

 

The ICA acknowledged divergent language in the statutes. First, HRS § 706-605(6) mandates wavier of the fee when the defendant “is unable to pay.” On the other hand, HRS § 351-62.6(a) requires imposition of the fee upon every convicted defendant “who is or will be able to pay” the fee and authorizes the sentencing court to look at the defendant’s “future earning capacity” when setting the fee. The ICA construed both statutes with reference to each other. Waters v. Nago, 148 Hawai'i 46, 61, 468 P.3d 60, 75 (2019). The ICA interpreted the statutes together and fashioned a two-step process:

 

[W]e conclude that a sentencing court must impose CVC fees upon the satisfaction of two conditions: (1) that the defendant has been convicted of a criminal offense, including a conviction upon a plea; and (2) a determination that the defendant is or will be able to pay the CVC fee. If it is determined that the defendant is unable to pay the CVC fee, then the sentencing court must waive the imposition of the CVC fee as stated in HRS § 351-62(a), as well as HRS § 706-605(6).

 

In applying the test, the ICA held that the first condition was clearly met—he was convicted of multiple offenses. As for the second condition, the ICA held that the circuit court erred in finding that Pulgados was able to pay. The ICA noted that although Pulgados wants to find work when he is released, the future is “a rather bleak picture” and the circuit court’s finding that he is able-bodied and is likely to find work is too speculative. The circuit court erred in imposing this fee.

 

When can the Defendant be able to pay? The ICA appears to have resolved the conflicting statutory language in HRS § 351-62.6 and HRS § 706-605(6) by allowing the fee to be imposed when the defendant “will be able to pay.” In applying the test, however, the ICA noted that there was nothing in the record remotely suggesting Pulgados would be in a position to pay in the future. This case seemed to be a clear one for the ICA. Pulgados was imprisoned, lacked assets and property, and suffered from an injury depriving him from working. It remains to be seen how courts plan on determining when a defendant “will be able to pay.” It also seems that the presumption of indigency may still be a viable possibility.

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