James W. Patterson v The State Of Oklahoma

RE-2001-887

Filed: Apr. 30, 2002

Not for publication

Prevailing Party: The State Of Oklahoma

Summary

James W. Patterson appealed his conviction for Uttering Two or More Bogus Checks. Conviction and sentence of one year in jail and restitution of $5,759.02. Judge Strubhar dissented.

Decision

IT IS THE ORDER OF THIS COURT that this matter be REMANDED to the District Court for further proceedings consistent with this opinion. The District Court's order containing findings of fact and conclusions of law shall be forwarded to this Court within forty-five (45) days of the date of this Order. IT IS SO ORDERED.

Issues

• Was there a legal authority for imposing restitution for offenses for which Appellant was neither charged nor convicted?
• Did the trial court properly determine Appellant's ability to pay restitution without causing manifest hardship?
• What was the correct amount of restitution that Appellant was legally required to pay?
• Did the State meet its burden of showing Appellant's failure to pay was willful?
• Did the imposition of incarceration fees violate Appellant's Fourteenth Amendment rights and applicable statutory requirements?
• Was there sufficient evidence to support the actual costs of Appellant's incarceration?
• Was there proper presentation of a restitution claim by the District Attorney in relation to the appellant's offenses?
• Did the court abuse its discretion in ordering excessive court costs and costs of prosecution?
• Was Appellant subject to double billing for costs already imposed on her?

Findings

• the court erred in imposing restitution for offenses for which Appellant was not charged or convicted
• the court erred in failing to determine if Appellant could pay restitution without manifest hardship
• the matter was remanded for further findings on restitution amounts owed and willfulness of non-payment
• the matter was remanded for findings regarding actual costs of incarceration and any manifest hardship
• the matter was remanded for findings supporting the amount of restitution imposed in CF-99-332
• the matter was remanded for clarification on taxation of court costs and any potential double billing

RE-2001-887

Apr. 30, 2002

James W. Patterson

Appellant

v

The State Of Oklahoma

Appellee

SUMMARY OPINION

REMANDING MATTER FOR FURTHER FINDINGS OF FACT AND CONCLUSIONS OF LAW

I. On November 21, 1995, Appellant, represented by court appointed counsel, entered a plea of Nolo Contendere to Uttering Two or More Bogus Checks Exceeding $50.00, in Pottawatomie County District Court, Case No. CF-95-393. The Information listed four $35.00 checks written by Appellant to Pratts’ Grocery Store. Appellant’s plea was accepted and sentencing was deferred for five (5) years. In addition, Appellant was ordered to pay $6,272.07 in restitution, $198.00 in court costs and $75.00 in attorney fees. On January 13, 1999, the State filed an Application to Accelerate Deferred Sentence, alleging Appellant had violated the terms and conditions of her deferred sentence. Specifically, the State alleged Appellant had failed to report to her probation officer, failed to make restitution payments and failed to pay court costs. According to the violation report that formed the basis of the Application to Accelerate, the defendant owes $1,070.00 in court costs and $3,726.41 to the Bogus Checks Division of the District Attorneys’ Office and last made a payment of $450.00 in May 1998. Finally, it was claimed Appellant was $220.00 in arrears on probationary fees. On September 1, 1999, Appellant, represented by court appointed counsel, confessed the State’s application and on September 13, 1999, the trial court found Appellant had violated the conditions of her deferred sentence. Sentencing was delayed for various reasons until May 23, 2001. On January 13, 2000, a Supplemental Violation Report was filed in the District Court indicating Appellant owes $3,964.00 in restitution, $174.00 in court costs and is currently $820.00 in arrears for probation fees.

II. On March 6, 2000, Appellant, represented by court appointed counsel, entered a plea of guilty to Uttering a Forged Instrument in Pottawatomie County District Court, Case No. CF-99-332. Appellant was sentenced to two (2) years imprisonment, all suspended, plus court costs, a $100.00 Victim’s Compensation Assessment and $125.00 for appointed counsel representation. A Summary of Restitution Payments states the total amount of restitution is $300.00 which was to be paid in monthly installments of $100.00. On April 27, 2001, the State filed an Application to Revoke Suspended Sentence, alleging Appellant had violated the terms and conditions of her suspended sentence.

III. On May 23, 2001, a combined hearing on both cases was held before the Honorable Glenn Dale Carter. At the conclusion of the hearing, the court found Appellant had violated the terms and conditions of her probation in both cases. In CF-95-393, Appellant’s five year deferred sentence was accelerated and she was sentenced to one (1) year in the Pottawatomie County Jail. In addition, Appellant was ordered to pay $140.00 in incarceration fees, $482.00 in court costs and restitution in the current amount of $5,759.02. In CF-99-332, Appellant’s two year suspended sentence was revoked in full and she was further ordered to pay $560.00 for the costs of prosecution, sheriff’s fees accrued including processing out fee in the amount of $250.00, $300.00 in restitution and $110.00 in incarceration fees. The sentences were ordered to run concurrently. It is from these Judgments and Sentences that Appellant appeals. The two cases have been consolidated for purposes of this appeal.

IV. In the first proposition of error, Appellant contends she should be relieved of the restitution ordered by the trial court because she was ordered to pay restitution to alleged crimes for which she was never charged or convicted. She further argues the trial court did not comply with statutory authority and this Court’s requirements for imposing restitution. Appellant argues she was charged in CF-95-393 with writing four $35.00 bogus checks to Pratt’s Grocery Store on May 19 and 20, 1995. The total of the four checks equaled $140.00. Appellant pleaded nolo contendere to the charges, but yet, was ordered to pay a total restitution of $6,272.07. Evidently, the basis for that amount of restitution comes from a two-page report found in the original record. The report apparently implicates Appellant in writing 93 bogus checks over a period of several years. Of the 93 checks, the report indicates 36 have been paid, leaving 57 unpaid. The total of those 57 unpaid checks, with bank fees and District Attorney fees is $6,272.07, which equals the restitution imposed upon Appellant. Four of the 57 unpaid checks are apparently the checks to which Appellant entered a nolo contendere plea in CF-95-393. The total cost for the four checks to which Appellant entered her plea is $432.00. The remaining 53 checks account for $5,840.07 of the restitution imposed. Appellant avers that imposing restitution for crimes she was never charged and convicted is improper. Citing 22 O.S. § 991(f)(C)(1), Appellant argues she must first be convicted of a crime before restitution can be ordered for the offense. Appellant cites United States v. Cook, 952 F.2d 1262, 1263 for authority that a court may only order restitution for the crimes for which a defendant is convicted. Appellant also argues the trial court failed to determine whether she could pay the restitution without her family or herself suffering manifest hardship as required by statute, and this Court’s holding in Honeycutt v. State, 1992 OK CR 36, 834 P.2d 993, 999 – 1001.

V. In her second assignment of error, Appellant contends the imposition of incarceration fees pursuant to Okla. Stat. tit. 22, § 979(A) violated her Fourteenth Amendment rights because the costs imposed appear not to be the actual costs of incarcerating her. Furthermore, Appellant asserts the fees were not imposed in accordance with the applicable statutory requirements. On November 30, 2000, Appellant was arrested on a warrant for failure to appear in Case No. CF-95-393. She was incarcerated from November 30 until December 1, 2000, and assessed $140.00 in incarceration fees. Appellant asserts the imposition of these fees violated her right to due process for several reasons. Initially, Appellant asserts the State’s own evidence establishes the actual costs of incarcerating her over the twenty-four hour period amounted to $30.00, not $140.00. Next, Appellant contends there is no evidence in the record to support how the amount of $140.00 was calculated. Citing 22 O.S.2000, § 979(A), Appellant argues a defendant is obligated to pay only the actual costs of incarceration. Finally, Appellant argues that in contravention of the guidelines of § 979(A), the prosecutor never asked for incarceration fees to be assessed against her and there was no consideration given, or evidence adduced, regarding whether such fees would constitute a manifest hardship on Appellant.

VI. Appellant next contends she should be relieved of some restitution ordered by the trial court because the amount of the victim’s loss was not determined with reasonable certainty, and therefore, recovery has been waived. Exhibit A of Appellant’s Judgment and Sentence in CF-99-332 states that she is to pay $300.00 in restitution. However, Appellant claims there was no evidence presented, nor was a hearing ever held, concerning the imposition of that restitution. Citing 22 O.S.2001, § 991f, Appellant argues the District Court failed to follow the mandatory requirements for the imposition of restitution. Appellant further avers there is no record evidence this ordered restitution has anything to do with actual economic loss suffered by a particular victim as a direct result of the defendant’s criminal act.

VII. Finally, Appellant asserts the District Court abused its discretion in taxing her with court costs and the costs of prosecution, which she claims are excessive. On March 8, 2000, Appellant was ordered to pay $253.00 in court costs. On May 23, 2001, Appellant was further ordered to pay $560.00 for the costs of her prosecution, for a total of $813.00. Appellant asserts the court costs and costs of prosecution are excessive because they exceed the amount allowed by law. Appellant asserts that only the costs authorized by statute may be assessed as costs of prosecution.

For the reasons expressed above, IT IS THE ORDER OF THIS COURT that this matter be REMANDED to the District Court for further proceedings consistent with this opinion. The District Court’s order containing findings of fact and conclusions of law shall be forwarded to this Court within forty-five (45) days of the date of this Order. IT IS SO ORDERED.

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Footnotes:

1. Appellant was originally charged with five counts. (O.R. 1 - 2)
2. Counts II - V were dismissed by the District Attorney. (O.R. 19)
3. United States v. Cook, 952 F.2d 1262, 1263
4. Honeycutt v. State, 1992 OK CR 36, 834 P.2d 993, 999 - 1001.
5. Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221 (1983)
6. Okla. Stat. tit. 22, § 979(A)
7. 22 O.S.2000, § 979(A)
8. 22 O.S.2001, § 991f
9. 28 O.S.2001, §§ 81, 101, 153 and 157
10. 22 O.S.2001, § 718
11. 59 O.S.2001, § 1332(F)
12. 28 O.S.2001, § 153(A)

Oklahoma Statutes citations:

• Okla. Stat. tit. 22 § 991f(C)(1) - Restitution
• Okla. Stat. tit. 22 § 979(A) - Incarceration fees
• Okla. Stat. tit. 22 § 991f - Restitution requirements
• Okla. Stat. tit. 28 § 81 - Court costs
• Okla. Stat. tit. 28 § 101 - Court costs
• Okla. Stat. tit. 28 § 153 - Court costs
• Okla. Stat. tit. 28 § 157 - Court costs
• Okla. Stat. tit. 22 § 718 - Court costs
• Okla. Stat. tit. 59 § 1332(F) - Court costs

Oklahoma Administrative Rules citations:

No Oklahoma administrative rules found.

U.S. Code citations:

No US Code citations found.

Other citations:

No other rule citations found.

Case citations:

• United States v. Cook, 952 F.2d 1262, 1263
• Honeycutt v. State, 1992 OK CR 36, 834 P.2d 993, 999 - 1001
• Bearden v. Georgia, 461 U.S. 660, 103 S.Ct. 2064, 76 L.Ed.2d 221