Hubbard v. State

LUMPKIN, Presiding Judge:

concur in part/dissent in part.

T1 I dissent to the Court's decision to vacate and remand for an evidentiary hearing the judgments and sentences with respect to the costs of incarceration. Since the only issues raised contest the assessment of costs of incarceration, I find the judgments and sentences are otherwise affirmed. I concur to that implicit affirming of the judgments and sentences not relating to the cost or incarceration.

12 Under 22 O.8.Supp.1991, § 9792, the costs of incarceration "shall not be assessed if, in the judgment of the court, such costs *102would impose a manifest hardship on the person, or if in the opinion of the court the property of the person is needed for the maintenance and support of immediate family." The only guidance provided to the trial court in determining the amount of jail costs is found in the language "(tlhe costs for incarceration shall be an amount equal to the actual cost of the services and shall be determined by the chief of police for city jails, by the county sheriff for county jails or by contract amount, if applicable."

T3 In Hubbard, when the trial court imposed the jail fees, it specifically found Appellant had the ability to pay based on his employability. In this regard, the court found Appellant was young, healthy, physically fit and had demonstrated his ability to work in various capacities. The court also found the imposition of the fines and costs would not pose a financial hardship on Appellant's family as he had not been supporting his 4 kids and had no legal obligation for support.

14 Further, the Judgment and Sentence shows fees to the Choctaw County Jail of $8,600.00. In the transeript, the judge states it had been previously determined in open court the cost was $20.00 a day per inmate for the Choctaw County Jail. The trial court further stated that Appellant would have 90 days from the date of his release to find a job and start paying on the fees, or make arrangements with the court clerk to work out a payment schedule. This procedure satisfied the requirements of § 97923. Therefore, remanding the case for a further evidentiary hearing is not necessary in this case. In addition, a challenge to the cost of incarceration was not raised at trial, therefore, all but plain error has been waived. Simpson v. State, 876 P.2d 690, 698 (Okl.Cr.1994). There is no plain error present in this case.

{5 Appellant's argument that because he was indigent at the time of trial, therefore he will still be indigent after he has served his prison sentence is not persuasive. Here, the trial court specifically looked past the term of incarceration and considered Appellant's em-ployability, and indicated a payment plan could be worked out. Further, Rule 8, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (1999), is in place for the failure to pay once time is served.

T6 As for Cape, this case is a certiorari appeal; therefore, we do not even reach the issue of jail costs. Assuming arguendo, that issue is appropriate for certiorari review, § 9792 does not require the trial court to set forth its calculation of incarceration costs. In Cape, the trial court was presented with a Verification of Jail Costs from the Cleveland County Sheriff. A letter to the judge shows the sheriff arrived at his cost of $830.00 per day per inmate based upon a formula approved by the U.S. Marshall's Service. There is no requirement in the statute for a hearing to determine the reliability of the sheriff's verification of the amount of jail costs.

T7 Further, the record in Cape does not contain the sentencing hearing. Therefore, we do not know whether Appellant attempted to challenge the sheriff's verification or offer evidence in contradiction. This Court will not assume error from a silent record. Ellis v. State, 795 P.2d 107, 109 (Okl.Cr. 1990). The Verification of Jail Costs from the county sheriff and his accompanying letter of explanation were sufficient to meet the requirements of § 979a(A). Therefore, I see no reason to remand this case for an eviden-tiary hearing on the costs of incarceration.

18 This Court has consistently held that for purposes of payments of fines and costs, the time for determining ability to pay and/or hardship is when the obligation to pay com-meneces, 4.¢., after release from incarceration and the provisions of Rule 8 come into application. See Dyer v. State, 815 P.2d 689, 691 (Okl.Cr.1991); DeRonde v. State, 715 P.2d 84, 87 (Okl.Cr.1986); Jones v. State, 682 P.2d 757, 759 (Okl.Cr.1984) (all finding the issue of ability to pay judicially imposed fines is raised prematurely on direct appeal as the ability to pay is not to be determined until the appellant's release from incarceration). However, § 9792 provides for the determination of "manifest hardship" in regards to the costs of incarceration at the time of sentencing. The term "manifest hardship" as used in this statute is not defined by the Legislature. Looking at Webster's Dictionary, "manifest" is defined as "obvious" "clearly *103apparent to the sight or understanding". "Hardship" is defined as "extreme privation: suffering". Under these definitions, jail costs could not be assessed if such costs would result in obvious suffering or privation for the defendant.

1 9 If this Court is to set forth a directive to the district courts to follow regarding the imposition of jail costs, the procedure set out by the Legislature in § 9792 should be followed. Section 9792 provides that the county sheriff or chief of police is to determine and certify the actual cost of incarceration for each defendant. The district court must then adjudicate and determine if that actual cost will impose a manifest hardship through an adversarial proceeding.

10 The process set forth in the opinion seeks to establish an "average" cost of incarceration, rather than the "actual" cost as required by § 9792. The methodology required does not take into consideration the cost of medical, dental or psychiatric services required for a particular inmate during the course of his/her incarceration. The cost of incarceration can vary greatly over a 12-month period of time. The updating of costs should take place on an ongoing basis rather than just annually.

{11 Further, it is the defendant who has the burden of proof as to ability to pay and manifest hardship. It is very likely that every individual sentenced to incarceration will be able to show hardship due to the incarceration itself. Therefore, proof of "manifest hardship" should be by clear and convincing evidence, not merely a preponderance of the evidence, and properly presented in an adversarial proceeding where the defendant is subject to cross-examination. In addition, the focus of the hearing should be on the ability to pay and manifest hardship, if any, occurring at the time the defendant is to start his/her payments of cost of incarceration. Further, ex parte affidavits have no place in a hearing to determine the facts. See Honeycutt v. State, 834 P.2d 998, 1000 (Okl.Cr.1992) (both the State and the defense have the opportunity to present evidence of the victim's loss and the hardship to the defendant and his family in the area of vie-tim's compensation/restitution assessments).

" 12 I agree a uniform procedure should be established for the assessment of costs of incarceration. However, that procedure should follow the statute, the Rules of this Court and our prior caselaw.