If the Court has discretion to impose the fee, it must first determine the defendant's ability to pay

 Warner v. State (HSC September 20, 2022). Background. Luke Warner was indicted with four counts of attempted theft in the 2d degree, three counts of meth trafficking, and seven other offenses for a total of fourteen counts. He pleaded guilty to meth trafficking in the second degree and the other counts. During the colloquy between Warner and the circuit court (the Hon. Judge Karen Ahn presided), the circuit court went over the possibility of “authorized fines” but did not specify or inform Warner about court fees and other monetary assessments. The guilty plea was accepted and he was sentenced to a total of 10 years imprisonment. The circuit court did not impose a fine, but levied fees: a $1,420 crime victim compensation fee, $1,420 drug demand reduction assessment, $7,500 methamphetamine trafficking restitution and reimbursement, and a fee of up to $500 for a DNA analysis. The sentencing court made no finding that Warner could afford to pay any of these fees at the time of sentencing or in the future. 

Warner filed without a lawyer a Rule 40 petition seeking to set aside the judgment of conviction. Among his various claims, he requested that the court “waive all of the fines and fees imposed at sentencing.” The petition was denied without a hearing. He appealed the denial to the ICA, which affirmed. Then he petitioned for a writ of certiorari to the HSC.

 

Rule 40 petitions. A petition to set aside a judgment of conviction or provide other relief requires an evidentiary hearing when it states a “colorable claim.” Lewi v. State, 145 Hawai'i 333, 345, 452 P.3d 330, 342 (2019). Moreover, pleadings by pro se litigants should be construed liberally. Waltrip v. TS Enters., Inc., 140 Hawai'i 226, 239, 398 P.3d 815, 328 (2016).

 

Court fees are criminal fines. The HSC examined Warner’s request to waive the monetary assessments imposed at sentencing. Recently, the HSC held that the crime victim compensation fee and the drug demand reduction assessment—two financial exactions imposed on Warner—are criminal fines (and not unconstitutional taxes). State v. Yamashita, 151 Hawai'i 390, 400, 515 P.3d 207, 217 (2022). According to the HSC, the “monetary assessments against Warner are all criminal fines” and his challenge to the imposition of “fines” include the crime victim compensation fee, drug demand reduction assessment, methamphetamine trafficking restitution and reimbursement, and DNA registry special fund assessment.

The failure to inform Warner about the monetary assessments raises a colorable claim. Before accepting a guilty or no contest plea, the court must ensure that the defendant understands “the maximum penalty provided by law . . . which may be imposed for the offense to which the plea is offered[.]” HRPP Rule 11(c)(2). That includes things like restitution:

 

[B]ecause restitution is part of the “maximum penalty provided by law” and is a direct consequence of conviction, defendants must be appropriately advised and questioned in open court regarding their understanding of this possibility before a court can accept their pleas.

 

State v. Kealoha, 142 Hawai'i 46, 50, 414 P.3d 98, 102 (2018). Restitution is a direct consequence of a conviction and is part of the sentence. Id. at 60-61, 414 P.3d at 112-113. And since all monetary assessments imposed at sentencing are fines, Yamashita, 151 Hawai'i at 400, 515 P.3d at 217, the sentencing court in this case did not “fulfill its advisement obligation before accepting Warner’s plea.”

 

In Kealoha, the defendant requested either resentencing without restitution or leave to allow withdrawal of the guilty plea as the remedy for failing to advise a direct and collateral consequence of a conviction. Kealoha, 142 Hawai'i at 62, 414 P.3d at 114. The HSC, however, noted that the because no motion was filed in the circuit court, it affirmed the convictions without prejudice for him to file a Rule 40 petition. Id. at 50, 414 P.3d at 102. Here, Warner already filed his Rule 40 petition. The HSC held that the ICA erred in affirming the denial of his colorable claim without an evidentiary hearing.

 

The sentencing court’s failure to assess Warner’s ability to pay before imposing the court fees is another colorable claim. The sentencing court made no finding that Warner could pay the court fees and assessments. The HSC noted that determining a defendant’s ability to pay a court fee or fine is “relevant and important.” Unpaid fees and fines may be forgiven when the failure to pay is not contumacious. HRS § 706-644. Unpaid fees, fines, and restitution may also be converted to prison sentences, HRS § 706-644(3), but incarceration based solely on an inability to pay is unconstitutional. State v. Huggett, 55 Haw. 632, 639, 525 P.2d 1119, 1124 (1974) (citing State v. Tackett, 52 Haw. 601, 483 P.2d 191 (1971)). See also Bearden v. Georgia, 461 U.S. 660, 667-669 (1983). Moreover, statutes affording discretion to waive or reduce expenses incurred by litigants in criminal cases requires a determination of the defendant’s financial ability to pay. Arnold v. Higa, 61 Haw. 203, 206, 600 P.2d 1383, 1834 (1979).

 

The crime victim compensation fee. The HSC applied these principles to the assessments in Warner’s case. First, the crime victim compensation fee pursuant to HRS §§ 706-605(6) and 351-62.6(a) may be waived when the defendant cannot afford to pay the fee at the time of sentencing. State v. Yamashita, 151 Hawai'i at 398, 515 P.3d at 215. The circuit court’s failure to determine if Warner could afford to pay the $1,420 crime victim compensation fee is a colorable claim warranting an evidentiary hearing.

 

The drug demand reduction assessment. The same goes for the drug demand reduction assessment. Whenever a defendant is convicted for drug and intoxicating compound convictions, the sentencing court is required impose the fee. HRS § 706-650(1). However, “[u]pon a showing by the person that the person lacks the financial ability to pay all or part of the monetary assessment, the court may waive or reduce the amount of the monetary assessment.” HRS § 706-650(5). According to the HSC, “[w]hen a statute provides a court with discretion to waive or reduce expenses that must be paid, the court must make a determination of the defendant’s financial ability to pay.” See Arnold v. Higa, 61 Haw. at 206, 600 P.2d at 1384. That did not happen here and thus it was a colorable claim.

 

The methamphetamine trafficking restitution and reimbursement. Because Warner was convicted of meth trafficking in the second degree, he was subject to the methamphetamine trafficking restitution and reimbursement statute. HRS § 712-1240.9. That statute affords courts with discretion to order it at all. Once again, “when a statute provides a court with discretion to waive or reduce expenses that must be paid, the court must make a determination of the defendant’s financial ability to pay.”

 

The DNA analysis assessment.

 

[E]very defendant convicted of a felony offense shall be ordered to pay a monetary assessment of $500 or the actual cost of the DNA analysis, whichever is less. The court may reduce the monetary assessment if the court finds, based on evidence presented by the defendant and not rebutted by the State, that the defendant is not and will not be able to pay the full monetary assessment and, based on the finding, shall instead order the defendant to pay an assessment that the defendant will be able to pay within five years.

 

HRS § 706-603(1). The HSC held that without a finding by the circuit court “regarding Warner’s ability to pay the DAA at the time of sentencing or within five years thereafter,” he raised a colorable claim here too.

 

Warner’s other claims were civil in nature and instead of being denied, should have been transferred for disposition under the civil rules. Warner’s other claims included things like reverse racism claims, mental and psychological decompensation from incarceration, and “accumulative errors.” In construing these pro se claims liberally, the HSC held that these were civil claims because he requested the circuit court to consider his “civil injustices, medical decompensation, and material and financial losses, and make compensatory judgements.” This petition itself sought relief under HRPP Rule 40 and pleaded “a separate claim or claims under . . . a separate cause of action[.]” HRPP Rule 40(c)(3). That meant the circuit court should have treated it as a civil complaint subject to the Hawai'i Rules of Civil Procedure.