State v. Parker

DAVIS, Judge

(concurring in part and dissenting in part):

I concur with that portion of Judge Billings’s opinion regarding jurisdiction. However, I respectfully dissent from her determination that due process demands a return of fees that Parker paid to the Fremont Center.

Although Utah’s statutory scheme provides for the return of bail and deposits to a defendant when a conviction is vacated, Utah R.Crim.P. 28(a), it does not provide for the return of fees for rehabilitative services. *1049Thus, support for Judge Billings’s position must come from some other source.

Judge Billings relies on cases in which courts in other jurisdictions have found that due process requires a reimbursement of fines paid “incident to conviction” where the conviction is later overturned. See, e.g., United States v. Lewis, 342 F.Supp. 833 (E.D.La.1972), aff'd, 478 F.2d 835 (5th Cir.1973); State v. Superior Court, 2 Ariz.App. 545, 410 P.2d 502 (1966); People v. Meyerowitz, 61 Ill.2d 200, 335 N.E.2d 1 (1975); State v. Piekkola, 90 S.D. 335, 241 N.W.2d 563 (1976). She also relies on a case where the court approved refund of surcharges, which are fees paid into a general fund and for which a defendant receives no specific benefit. See People v. Floyd, 61 N.Y.2d 895, 474 N.Y.S.2d 476, 462 N.E.2d 1194 (App.1984) (mem.).

Judge Billings properly identifies fines and surcharges as “incidents of conviction” for which reimbursement is required. She then expands the concept to include fees paid to a public rehabilitation facility, reasoning that Parker “had no choice but to abide by this term of his probation.”

It is from this portion of her analysis that I dissent. I do not believe that fees paid for services received at a rehabilitation center constitute incidents of conviction requiring reimbursement because (1) such fees are part of the rehabilitative process rather than punitive, and (2) Parker received a benefit for those fees.

Probation “is an act of grace by the court suspending the imposition or execution of a convicted offender’s sentence upon prescribed conditions.” Utah Code Ann. § 77-27-1(10) (Supp.1993). The purposes of probation are “reform and rehabilitation” rather than punishment. Black’s Law Dictionary 1202 (6th ed. 1990) (citing Baine v. Beckstead, 10 Utah 2d 4, 347 P.2d 554, 558 (1959)).

The cases on which Judge Billings relies do not require the result reached thereby and are equally supportive of the trial court’s ruling because fines and surcharges are primarily punitive and because a defendant does not receive or have the potential to receive a direct benefit therefrom. In this case, Parker paid the partial fees to the Fremont Center in consideration for rehabilitative and other services such as room, board, high school education courses, counseling, psychosocial services and employment experiences. Thus, such fees are better categorized as incidents of probation and rehabilitation rather than incidents of conviction.

Parker’s need for rehabilitative services is undisputed: His attorney acknowledged at the sentencing hearing that Parker needed formal probation and vocational rehabilitation and his factual guilt is not at issue. Under these circumstances, Parker was in a position to receive a direct benefit at the Fremont Center in consideration for the partial fees he paid. Compelling the State to reimburse those fees would, in effect, unjustly enrich Parker at the State’s expense. Justice does not require a refund of money from which Parker has either benefited or been given the opportunity to benefit. Moreover, the Fremont Center in good faith accepted Parker’s money. In return, it rendered rehabilitative services while the conviction was still in effect and not yet overturned.

Judge Billings concedes that had Parker elected prison time rather than probation, he could not sue the State to recover compensation or damages.1 Yet by electing probation over prison time, Judge Billings would allow Parker to avail himself of a remedy not otherwise available. To my mind, this reasoning is inconsistent.

Perhaps the greatest difficulty I have with expanding the “incidents of conviction” for which the State must make the defendant whole is its potential application to almost any event that may occur as a result of a criminal conviction. For example, would the State be required to reimburse defendants for fees paid to private rehabilitative facilities including vocational schools and hospitals? Would the State be required to, in effect, be the insurer for such facilities? Would the State be required to reimburse the defendant *1050for restitution paid to a victim? Would the State become an insurer for those funds as well? Perhaps most importantly, the prospect of having to make a convicted criminal whole, however remote, may have a chilling effect upon the availability and use of rehabilitative services.

Finally, I disagree with Judge Billings’s reliance on due process as a basis for returning the fees paid to the Fremont Center for rehabilitative services. Judge Billings relies on notions of fairness and equity to support her position. See Billings opinion at 1046-47 (citing Lewis, 342 F.Supp. at 836), which addresses procedural due process). My concern is that Judge Billings’s opinion suggests an expansion of the concept of due process whenever it is perceived that one has been treated unfairly. Just as Judge Billings believes I give an unduly restrictive reading to procedural due process, I think her view is unduly broad in this case.

In the instant case, I believe procedural due process requires that Parker be given notice and a hearing before being deprived of his property rights. See Burlett v. Holden, 835 P.2d 989, 991 (Utah App.1992) (citing Wolff v. McDonnell, 418 U.S. 539, 556, 94 S.Ct. 2963, 2974, 41 L.Ed.2d 935 (1974)). Parker received notice and was heard at his sentencing hearing at which he opted to fore-go serving time in prison, for which he could not be reimbursed, and to instead attend the Fremont Center. In addition, Parker was heard on his Motion for Return of Fine, Costs, and Fees, and he received partial redress under that motion from the trial court. Hence, I see no violation of Parker’s procedural due process rights.

Judge Billings appears to rely, I believe incorrectly, on substantive due process to support her conclusion that Parker must be refunded the fees paid the Fremont Center. As the United States Supreme Court stated recently,

“As a general matter, the Court has always been reluctant to expand the concept of substantive due process because the guideposts for responsible decisionmaking in this unchartered area are scarce and open-ended.” The protections of substantive due process have for the most part been accorded to matters relating to marriage, family, procreation, and the right to bodily integrity.

Albright v. Oliver, — U.S. —,—, 114 S.Ct. 807, 812, 127 L.Ed.2d 114 (1994) (quoting Collins v. Harker Heights, — U.S. —, —, 112 S.Ct. 1061, 1068, 117 L.Ed.2d 261 (1992). Applying substantive due process here is an unchartered area.2

I would affirm the trial court’s order denying return of the money paid by Parker to the Fremont Center for rehabilitative services he received there.

. While choosing probation over prison is nearly a Hobson’s choice, it is nevertheless a choice offered at the discretion of the court. State v. Rhodes, 818 P.2d 1048, 1049 (Utah App.1991).

. Judge Billings suggests that the Utah Supreme Court analyzed Condemarin v. University Hosp., 775 P.2d 348 (Utah 1989) using substantive due process. See Billings opinion at 1048. However, the use of a substantive due process analysis in Condemarin was embraced by two Justices only, and it is therefore not necessarily the law in Utah. Compare Condemarin, 775 P.2d at 352-56 & n. 6 (Durham, J.); id. at 366-69 (Zimmerman, J., concurring in part) (applying due process) with id. at 369-70 (Stewart, J., concurring) (applying equal protection). See also Hipwell v. Sharp, 858 P.2d 987, 988-89 n. 4 (Utah 1993) (discussing differing analyses applied in Conde-marin ’s concurring opinions). Also, Condemarin appears to deal with state constitutional law, while Judge Billings addresses Parker’s claims under federal due process. See Condemarin, 775 P.2d at 348-66; Hipwell, 858 P.2d at 988 n. 4.