If You Can’t Pay the CVC Fee at Sentencing, the Court Can’t Impose it

 State v. Yamashita (HSC August 5, 2022)

Background. Joshua Yamashita was on probation when he was prosecuted in seven separate offenses. He pleaded no contest and was sentenced to a total of twenty-six counts including unauthorized control of a propelled vehicle to theft, criminal property damage, and drug offenses. The circuit court—the Hon. Judge Rhonda Loo presiding—sentenced Yamashita to five years imprisonment and ordered $1,810 in fines, $8,767.20 in restitution, the Crime Victim Compensation fee totaling $2,075, the Internet Crimes Against Children fee totaling $2,500, and the $100 Drug Demand Reduction assessment.

 

Yamashita challenged the last three court fees and filed a motion to reconsider the sentence. The circuit court held an evidentiary hearing. At the hearing Yamashita testified that he was 29 years old and had a GED. He lived at the Halawa Correctional Facility and made $0.25 an hour as a plumber working 35 hours a week thereby averaging $15-$20 a month. He testified his mother sometimes puts $100 in his prison account but $30 per month is taken out because of the court debt. He had no other assets. He also to pay $100 in child support for his two daughters.

 

He has no medical conditions preventing him from getting a job and he intends to find one upon his release. He testified he was unable to pay the CVC fee, but agreed that once released and working it would be “feasible” for him to pay $30 per month. The circuit court granted the motion in part and struck the ICAC fee. All other fees were upheld. The ICA affirmed.

 

The Crime Victim Compensation Fee can only be imposed when the defendant is able to pay at sentencing. The sentencing court must impose the CVC fee “on every person convicted of a criminal offense pursuant to section 351-62.6[.]” Hawai'i Revised Statutes (HRS) § 706-605(6). The court, however, must waive the fee “if it finds that the defendant is unable to pay the fee.” Id. Similarly, HRS § 351-62.6 orders the court to “waive the imposition of a [CVC] fee if the defendant is unable to pay the [CVC] fee.” HRS § 351-62.6(a) also states that the fee must be imposed on every defendant convicted of a criminal offense and “who is or will be able to pay” the fee. Id.

 

The HSC held that this language about people who will be able to pay in the future does not create a “plainly irreconcilable conflict” between the statutes. See Richardson v. City and County of Honolulu, 76 Hawai'i 46, 54-55, 868 P.2d 1193, 1201-1202 (1994). Instead, the two statutes simply overlap. Both HRS §§ 706-605(6) and 351-62.6(a) mandate waiver of the fee when the defendant is unable to pay at the time of sentencing. This “renders irrelevant whether a defendant may gain the ability to pay in the future.” In doing so, the HSC overruled that part of State v. Pulagdos, 148 Hawai'i 361, 477 P.3d 155 (App. 2020), in which the ICA held that the CVC fee must be imposed when a convicted defendant “is or will be able to pay the CVC fee.” Id. at 369, 477 P.3d at 163.

 

And so the CVC fee can only be imposed when the defendant is able to pay the fee at the time of sentencing. The circuit court erred in looking at Yamashita’s future ability to pay and the ICA erred in affirming.

 

The Court Fees Aren’t Taxes, They’re Fines. Yamashita also argued that the CVC fee and the DDR assessment were unconstitutionally delegations of the taxation power—a power reserved solely to the legislative branch. The HSC rejected this argument and held that the fees were constitutional criminal fines.

 

A fine “is a ‘retributive payment’ due the sovereign” made to “advance punitive objective[s].” State v. Gaylord, 78 Hawai'i 127, 152, 890 P.2d 1167, 1192 (1995). They are a “means of penalizing the offender.” HRS § 706-640 cmt. The HSC agreed with the analysis in State v. Adcock, 148 Hawai'i 308, 320, 473 P.3d 769, 781 (App. 2020), in which the ICA held that these fees were authorized to punish people for criminal behavior, they do not offset the costs of prosecution, and when imposing at least the CVC fee the court has to consider “the severity of the crime” and criteria in HRS § 706-641, which extends to other criminal fines. Id. at 320, 473 P.3d at 781. The HSC ultimately held that these are criminal fines for constitutional purposes—neither a fee nor a tax.

 

Where there’s a fine, there’s the Eighth Amendment. Now that the HSC has definitively held that these court fees are actually fines, the next question is whether they can be so high that they violate the Eighth Amendment’s prohibition against “excessive fees.” See Am. VIII and Haw. Const. Art. I, Sec. 12. Of course, if a fee gets that high, it can only be imposed on a person who can afford to pay it. That may take some time.