State v. Morgan

Morse, J.,

dissenting. I would affirm. By ordering reimbursement, the trial court implicitly made a finding that defendant individually would be able to reimburse. See 13 V.S.A. § 5238(b) (court shall order a defendant to pay for all or part of the cost of representation “based upon his or her ability to pay”) (emphasis added). It did so under the statute that presumes that the income of a defendant’s cohabiting family members is available to a defendant when making a determination regarding ability to pay. See id.; see also A.O. 4, § 5(d) (for purposes of co-payment and reimbursement determinations, income of an applicant’s cohabiting family members is deemed available to the applicant); State v. Bailey, 165 Vt. 579, 579, 682 A.2d 1387, 1387 (1996) (mem.) (trial court may not consider income of cohabiting family members in determination of whether a defendant is needy and therefore entitled to appointment of counsel, but may do so in determining co-payment and reimbursement amounts). Furthermore, it is generally accepted that it is defendant’s burden to demonstrate the inability to pay for counsel. See, e.g., Nikander v. Dist. Court, 711 P.2d 1260, 1262 (Colo. 1986); State v. Smith, 677 A.2d 1058, 1060 (Me. 1996); State v. Vincent, 883 P.2d 278, 283 (Utah 1994). The trial court simply evaluated the information presented on defendant’s application for appointed counsel in light of defendant’s burden, as well as the presumption described above.

Notably, if, as alleged on appeal, it would be a hardship for defendant to reimburse because he does not in fact receive support from his family, defendant has an opportunity to present that information to the trial court in a petition for remission, and the trial court may amend its order. See 13 V.S.A. .§ 5238(f) (court may remit all or part of amount due from defendant if it will impose manifest hardship on the defendant or the defendant’s immediate family). These facts, however, were not presented to the trial court in any form by defendant, and we may not consider them here.

The court here properly followed the statutory scheme in issuing its reimbursement order, including the portion of the scheme that creates a presumption that the income of cohabiting family members is available to the defendant.1 If the statutory scheme is constitutional, then the order should be affirmed. If, conversely, the statutory scheme is unconstitutional, as the majority seems to imply, then the Court should make that explicit.2 That is the very question *538we asked the parties to brief. I believe the scheme is constitutional, and would thus affirm.

On a general level, our statutory scheme does not impinge on a defendant’s Sixth Amendment right to counsel under Fuller v. Oregon. As I described above, our statute only allows a reimbursement order based on a judicial determination of an individual’s ability to pay. Furthermore, it affords a defendant the opportunity to seek remission if the order would create undue hardship for the defendant or the defendant’s family. It was these two attributes that the United States Supreme Court found essential to a constitutional reimbursement scheme under the Sixth Amendment. See Fuller v. Oregon, 417 U.S. 40, 45-46, 53-54 (1974) (“Oregon’s legislation is tailored to impose an obligation only upon those with a foreseeable ability to meet it, and to enforce that obligation only against those who actually become able to meet it without hardship.”). Thus, I do not believe that our scheme im-permissibly chills a defendant’s right to appointed counsel.

Nor do I believe considering the income of third parties, including family members, in a determination of an individual defendant’s ability to repay the government violates any constitutional principle, as long as that money is available to the defendant. In interpreting the federal Criminal Justice Act, which allows for reimbursement of the government for the costs of assigned counsel, 18 U.S.C. § 3006A(f) (allowing court to order reimbursement if it determines that sometime subsequent to the assignment of counsel “funds are available for payment from or on behalf of a person furnished representation”), courts have made clear that the dispositive issue regarding whether third-party funds should be considered in such a determination is whether the funds are available to or within the control of a defendant. See, e.g., United States v. Bracewell, 569 F.2d 1194, 1198-2000 (2d Cir. 1978) (noting that claims to funds, which had been seized by the government, made by defendant’s family members should be considered in determining whether those funds were available to defendant in case where court made no inquiry or determination regarding defendant’s financial status before ordering reimbursement under CJA); United States v. Bursey, 515 F.2d 1228, 1239 (5th Cir. 1975) (under CJA, government could not automatically seize $1000 bond deposit posted by adult defendant’s parents for reimbursement of costs of court-appointed counsel based on conclusive assumption money was within defendant’s control; rather, hearing was necessary to determine whether this money was. available to the defendant); Ybarra v. Wolff, 571 F. Supp. 209, 212-13 (D. Nev. 1983) (ordering reimbursement by defendant under CJA where a number of assets were held by wife and wife admitted to court that she was holding one-half of everything in her possession for defendant); see also United States v. Salemme, 985 F. Supp. 197, 201, 203 (D. Mass. 1997) (noting that, in determining whether a defendant is eligible for appointed counsel under CJA, court should determine whether income is available to defendant from other sources —court ordered defendant to disclose all funds available to him for his defense from *539“family, friends, trusts, or estates”); United States v. Robinson, 718 F. Supp. 1582, 1583 (M.D. Ga. 1989) (determining that defendant had failed to demonstrate a financial inability to retain counsel on appeal under CJA where an unidentified third party had paid $9000 cash on defendant’s behalf to retain trial counsel). I have yet to uncover a case holding that .consideration of income available to a defendant from third parties in making a reimbursement order violates a constitutional provision.

The question, then, is this: Do those portions of our statutory scheme that provide for a presumption that the income of cohabiting family members is available to an individual defendant at the reimbursement stage, but also afford defendants an opportunity to demonstrate otherwise at the remission stage, deprive defendants of procedural due process? I believe the answer is “no.”

A reimbursement order such as this is in the nature of a civil judgment.3 As such, the proper due process analysis is that applied to evidentiary presumptions in the civil context. The United States Supreme Court has stated:

That a legislative presumption of one fact from evidence of another may not constitute a denial of due process of law or a denial of the equal protection of the law it is only essential that there shall be some rational connection between the fact proved and the ultimate fact presumed, and that the inference of one fact from proof of another shall not be so unreasonable as to be a purely arbitrary mandate. So, also, it must not, under guise of regulating the presentation of evidence, operate to preclude the party from the right to present his defense to the main fact thus presumed.

Mobile, Jackson & Kansas City R.R. v. Turnipseed, 219 U.S. 35, 43 (1910), quoted in Usery v. Turner Elkhorn Mining Co., 428 U.S. 1, 28 (1976); see also Vance v. Terrazas, 444 U.S. 252, 267-70 (1980) (evaluating rationality of a presumption mandated by statutory scheme governing loss of United States citizenship); Keith Fulton & Sons, Inc. v. New England Teamsters & Trucking Indus. Pension Fund, Inc., 762 F.2d 1137, 1143-46 (1st Cir. 1985) (evaluating rationality of statutory presumption of reasonableness created under statutory scheme governing multiemployer pension plans); DiLoreto v. Fireman’s Fund Ins. Co., 418 N.E.2d 612, 615-16 (Mass. 1981) (evaluating under due process clause *540insurance regulation creating presumption of fault regarding certain types of automobile accidents).

It is both reasonable and rational to draw an inference that, if family members are cohabiting, they are likely sharing resources, see State v. Vincent, 883 P.2d 278, 283 n.6 (Utah 1994) (noting with approval trial court’s conclusion that two individuals living together as a family, although not married, formed an economic unit; thus, both incomes could be considered in making indigency determination), in other words, to presume that cohabiting family members’ income is available to a defendant. Furthermore, this presumption only operates at the preliminary stage of determining whether and in what amount a defendant ought to reimburse the state for court-appointed counsel. The statutory scheme affords a defendant an opportunity to contest this conclusion via a petition for remission. Although it may be preferable for this opportunity to come prior to any order of reimbursement, I believe the current procedure is constitutionally adequate. Cf. State v. Blank, 930 P.2d 1213, 1218-21 (Wash. 1997) (concluding that neither the Sixth Amendment nor due process requires a determination of ability to pay prior to a recoupment order as long as an opportunity to demonstrate an inability to pay exists at the enforcement stage); see also State v. Albert, 899 P.2d 103, 109-13 (Alaska 1995) (concluding that Sixth Amendment does not require a determination of ability to pay prior to issuing a recoupment order as long as safeguards are in place to prevent economic hardship to a defendant or a defendant’s family, and holding that state statute that provided a hearing on ability to pay only if requested by defendant constitutional). “Finding the best method ... is not our function; under the due process precedents which guide us, we must only find that [the Legislature] acted rationally in designing the procedure [at issue.]” Keith Fulton & Sons, 762 F.2d at 1144.

Thus, because I do not believe our statutory scheme suffers from a constitutional infirmity and because the trial court adhered to the statutory scheme in issuing its reimbursement order, I respectfully dissent. I would affirm the order, knowing that the defendant may still seek remission based on the facts he alleges on appeal. I am authorized to say that Justice Skoglund joins in this dissent.

I take issue with the Court’s observation that the trial court “made no further inquiry” beyond the information provided by the defendant on his application. Although a court may make inquiry, there is no obligation under the statute to go behind the facts recited in the application for appointment of counsel. There was sufficient information before the court to support the order in this case under the statutory scheme.

I read the Court’s opinion to hold that the statutory scheme is constitutional only if a trial court holds a hearing to make an independent determination of whether the family members’ income is available to defendant before issuing a reimbursement order, regardless of whether defendant contests that fact, rather than doing so at the remission stage. In effect, the Court holds that the statutory presumption is unconstitutional. I disagree as I discuss infra. I understand the Court’s desire to insure *538that a defendant is not unfairly saddled with the cost of appointed counsel when the defendant is financially unable to meet that obligation. Nevertheless, if doing so entails using up more of the state’s resources, including court time as well as attorney time, I question whether the program’s goal of recouping resources is served. Rather than wasting precious court and attorney time attempting to get water from a stone, perhaps we should just accept such costs as the price of protecting individuals’ constitutional rights.

This is in contrast to the portion of the statutory scheme providing that such an order automatically becomes part of a defendant’s sentence, if convicted, and is enforceable as a condition of probation, supervised community service or parole. 13 V.S.A. § 5240(d). The constitutionality of that provision is not before us in the case at hand. Cf. Basaldua v. State, 558 S.W.2d 2, 7 (Tex. Crim. App. 1977) (holding statutory scheme, which provided for automatic assessment of cost of court-appointed counsel against defendant upon conviction and allowed court to make repayment a condition of probation without regard to ability to pay, was consistent with constitution where defendant’s probation could not be revoked unless failure to make payment was intentional and defendant was able to make payment); see also Bearden v. Georgia, 461 U.S. 660, 672-73 (1983) (holding that probation may not be revoked for failure to pay a fine or restitution, if such failure is based solely on an individual’s indigency, and requiring that an inquiry be made into such matters prior to any revocation).