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State v. Albert6/23/1995
No. 4225 - June 23, 1995
Appeal from the Superior Court of the State of Alaska, Fourth Judicial District, Fairbanks, Mary E. Greene, Judge.
BRYNER, Justice, pro tem, dissenting, joined by RABINOWITZ, Justice, as to parts I, II and III.
In Gideon v. Wainwright, 372 U.S. 335 (1963), the United States Supreme Court held that in state criminal prosecutions "counsel must be provided for defendants unable to employ counsel" because of indigency. 372 U.S. at 340. Gideon, however, did not address the subject of whether states could attempt to recover from indigent defendants some of the costs of providing counsel to them. Currently, all states and the federal government have some type of cost recoupment system. Consolidated cases presently before this court challenge Alaska's recoupment system.
Alaska's system is set forth in AS 18.85.120(c), Alaska Criminal Rule 39, and Alaska Appellate Rule 209(b). See Appendix A. In brief, AS 18.85.120(c) authorizes the court, upon a person's criminal conviction, to enter a civil judgment against "a person for whom counsel is appointed . . . for services of representation and court costs." It provides that upon a showing of financial hardship, the court shall order payment in installments. Remission, reduction or deferral of the judgment can be ordered. AS 18.85.120(c). Payment is made to the state general fund. Id. Criminal Rule 39 and Appellate Rule 209(b) set forth procedures which implement the recoupment system.
Under Criminal Rule 39, when an indigent person who has been represented by court-appointed counsel is convicted, the court issues a notice of intent to enter judgment for the cost of appointed counsel calculated in accordance with a schedule set out in subsection (d). Alaska R. Crim. P. 39(c)(1)(A). The scheduled fees are significantly lower than those charged by private counsel, ranging downward from the maximum of $5,000 for trial of a first or second degree murder charge. Upon receipt of a notice of intent to enter judgment, a defendant may oppose entry of judgment; if opposition is filed, a hearing may be held. Alaska R. Crim. P. 39(c)(1)(C). The schedule of fees may be varied "for good cause shown" by either the prosecuting authority or the defendant, in which case actual costs and expenses will be assessed. Alaska R. Crim. P. 39(d).
If a recoupment judgment is entered, it has the same force and effect as a judgment in a civil action, Alaska R. Crim. P. 39(c)(2)(A), and proceedings to enforce the judgment are the same as those applicable to civil judgments. The judgment is not enforceable by contempt, payment of the judgment may not be a condition of the defendant's probation, and failing to pay the judgment does not affect the services available to the defendant from appointed counsel on appeal "or any other phase of a defendant's case in any way." Alaska R. Crim. P. 39(c)(2)(B).
A defendant does not have the right to be represented by court-appointed counsel in connection with proceedings related to the notice of intent to enter the recoupment judgment, or to the collection of the judgment. Alaska R. Crim. P. 39(c)(2)(B). On a showing of financial hardship, the court shall order payment in installments. It may order remission, reduction or deferral of the unpaid portion of the judgment. Alaska R. Crim. P. 39(c)(2)(C).
Alaska residents are entitled to an annual permanent fund dividend. AS 43.23.005. Recently the dividend has been in excess of $900. In recognition of this income source shared by all Alaskans, Criminal Rule 39(c)(1)(A) authorizes the court to order a convicted defendant to apply for a permanent fund dividend for every year in which the de
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