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Malutin v State (07/27/2001) ap-1757
Malutin v State (07/27/2001) ap-1757
NOTICE
The text of this opinion can be corrected before the
opinion is published in the Pacific Reporter. Readers are
encouraged to bring typographical or other formal errors to the
attention of the Clerk of the Appellate Courts:
303 K Street, Anchorage, Alaska 99501
Fax: (907) 264-0878
E-mail: corrections@appellate.courts.state.ak.us
IN THE COURT OF APPEALS OF THE STATE OF ALASKA
SHAWN MALUTIN, )
) Court of Appeals No. A-7479
Appellant, ) Trial Court No. 3KO-99-163 Cr
)
v. )
) O P I N I O N
STATE OF ALASKA, )
)
Appellee. ) [No. 1757 July 27, 2001]
)
Appeal from the Superior Court, Third Judicial
District, Kodiak, Donald D. Hopwood, Judge.
Appearances: Allan R. Thielen, Assistant
Public Defender, Kodiak, and Barbara K. Brink, Public Defender,
Anchorage, for Appellant. Joseph S. Slusser, Assistant District
Attorney, J. Michael Gray, District Attorney, Kodiak, and Bruce M.
Botelho, Attorney General, Juneau, for Appellee.
Before: Coats, Chief Judge, and Mannheimer and
Stewart, Judges.
MANNHEIMER, Judge.
Alaska Appellate Rule 209(b)(5) states that when a
criminal defendant receives appellate counsel at public expense,
"[a]t the conclusion of the appellate proceeding, the clerk of the
appellate courts shall enter judgment against the defendant for the
cost of appointed appellate counsel unless the defendant's
conviction was reversed by the appellate court." (Emphasis added)
We are asked to decide whether this exemption from attorney's fees
extends to a defendant who prevails on appeal, but whose appeal does
not include a challenge to his conviction. For the reasons
explained here, we conclude that the exemption should be construed
as it is written: only defendants who succeed in having their
convictions reversed are exempt from paying attorney's fees.
Shawn Malutin was convicted of attempted first-degree
sexual abuse of a minor. He appealed to this court, but he did not
challenge the validity of his conviction. Rather, Malutin raised
two points related to his sentencing. First, Malutin attacked the
superior court's decision to make him pay restitution to the victim
for future counseling expenses. Second, Malutin contended that the
superior court should have excised from the pre-sentence report all
information relating to Malutin's prior court-ordered psychological
evaluation.
In Malutin v. State, Memorandum Opinion No. 4294 (October
19, 2000), we agreed with Malutin that the record did not support
the superior court's restitution order, and we also agreed that all
references to Malutin's prior psychological evaluation should have
been excised from the pre-sentence report. (We did not, however,
decide whether the Department of Corrections could rely on that
prior psychological evaluation when making decisions concerning
Malutin's supervision and treatment. See Judge Mannheimer's
concurring opinion.)
After we issued our decision, the Clerk of the Appellate
Courts notified Malutin that she intended to enter judgement against
him for attorney's fees in the amount of $500 the amount specified
by Appellate Rule 209(b)(6) for felony sentence appeals. Malutin
objected to the proposed judgement. He argued that, because he
prevailed on both of the points that he raised on appeal, Appellate
Rule 209(b)(5) exempted him from paying attorney's fees. After
considering Malutin's objection, the Clerk ruled that Malutin would
have to pay the $500 because Appellate Rule 209(b)(5) only exempts
defendants whose convictions are reversed. Malutin now appeals the
Clerk's decision.
Based on our examination of the legislative history of
Appellate Rule 209 ( i.e., the memoranda and draft rules contained
in the Court Rules Attorney's archive files), it appears that the
Alaska Supreme Court first took up the idea of making indigent
defendants shoulder a portion of their attorney's fees in the mid-
1980s. At that time, Public Defender (now Chief Justice) Dana Fabe
convinced the court that this proposal was inconsistent with
existing statutes in particular, AS 18.85.120(c). [Fn. 1] The
supreme court then decided to ask the legislature to amend this
statute. [Fn. 2]
The result was SLA 1990, ch. 185, sec. 1, which enacted
an
amended version of AS 18.85.120(c). The pertinent part of the
amendment reads:
Upon the [indigent] person's conviction,
the court may enter a judgment that a person for whom counsel is
appointed pay for the necessary services and facilities of
representation and court costs ... .
Approximately two years later, the supreme court issued Supreme
Court Order No. 1088, which amended Criminal Rule 39 and Appellate
Rule 209 to impose attorney's fees on defendants who receive counsel
at public expense.
AS 18.85.120(c) states that attorney's fees can be imposed
only on those indigent defendants who are convicted. Criminal Rule
39(c)(1)(A) contains a parallel limitation: the rule authorizes
trial courts to impose attorney's fees on defendants who are
convicted, or whose probation is revoked, or who attack their
conviction and lose. [Fn. 3]
Appellate Rule 209(b)(5) also parallels AS 18.85.120(c),
but from an appellate perspective. The statute declares that
convicted defendants shall be made to pay attorney's fees. The
appellate rule adheres to this policy by imposing attorney's fees
on all defendants who remain convicted following the appellate
process i.e., all defendants who do not secure a reversal of their
conviction.
Despite Malutin's victory on appeal, he remains convicted.
(As we explained above, Malutin did not challenge his conviction.)
Because Malutin remains convicted, and because Appellate Rule
209(b)(5) directs the Clerk to enter judgement for attorney's fees
"unless the defendant's conviction was reversed by the appellate
court", the Clerk appears to have rightly concluded that Malutin
should be ordered to pay $500 attorney's fees (the amount specified
in Appellate Rule 209(b)(6)).
But even though Rule 209(b)(5) appears to require
attorney's fees of all defendants whose convictions are not
reversed, Malutin argues that the rule can not be taken literally.
He contends that such an interpretation of the rule is "excessively
narrow". Malutin points out that if defendants who secure a reversal
of their convictions are the only ones exempted from attorney's
fees, then attorney's fees will invariably be levied on all
defendants who do not attack their convictions for example,
defendants like Malutin who pursue only sentence appeals, or
defendants who file non-dispositive petitions for review. Malutin
argues that "such a result could not have been contemplated" by the
supreme court when it enacted Appellate Rule 209(b).
We disagree. The policy behind Appellate Rule 209(b)(5)
is that indigent litigants should shoulder at least some portion of
the legal expenses that society incurs on their behalf. The fact
that a defendant is "indigent" for purposes of receiving counsel at
public expense does not necessarily mean that they are without
income or assets. As we explained in George v. State [Fn. 4]:
[T]he definitions of "indigency" contained in
the Alaska statutes and court rules focus on a person's ability to
hire private counsel. Many people with regular incomes will be
found "indigent" under these definitions, even though they could
afford to pay a $100 filing fee if that were the only expense of
litigation.
944 P.2d at 1184. Likewise, a defendant might be unable to spend
thousands of dollars to hire private counsel, yet still be able to
afford attorney's fees of $500.
Under our legal system, litigants normally are expected
to bear a significant part of their legal fees, even when they win
the litigation. For indigents accused of crimes, the legislature
has modified this expectation: indigent defendants need not pay if
they are not convicted. But this is a departure from normal
practice. As the supreme court explained in State v. Albert [Fn.
5], when it upheld the constitutionality of Criminal Rule 39 and
Appellate Rule 209:
Nonindigents who must pay for counsel may
choose to forego counsel because they believe that the benefits of
counsel's service are outweighed by its costs. The fact that our
market system forces nonindigents to make such a choice has never
been regarded as a deprivation of the right to counsel, even though
the fees incurred in serious felony cases may exceed all the assets
of all but the wealthiest defendants. An indigent's choice as to
whether or not to accept appointed counsel, given the eventual cost
of counsel under Criminal Rule 39, is not different in kind from the
economic choice which must be made by a nonindigent accused of
crime. There is no principled way to say that the burden placed on
the indigent is unconstitutional while that placed on the
nonindigent is constitutional.
899 P.2d at 112-13.
If Malutin had had sufficient funds to hire a private
attorney, and if he had pursued and won this same sentence appeal,
he would be obliged to pay his attorney. The policy of Appellate
Rule 209(b)(5) is that indigent defendants should be placed in an
analogous situation: they should be obliged to pay something toward
the cost of the attorney they received at public expense subject
to the legislatively-mandated exemption for defendants who are not
convicted.
For these reasons, we conclude that even though Malutin
prevailed on the two issues he raised on appeal, the Clerk's
decision ordering Malutin to pay $500 in attorney's fees is indeed
the result contemplated by the supreme court when the court
promulgated Appellate Rule 209(b). We therefore AFFIRM the Clerk's
decision to enter judgement against Malutin for $500.
FOOTNOTES
Footnote 1:
See Memorandum, "Crim. Rule 39; App. Rule 209(b): Appointment
of Counsel for Indigent Defendants", dated October 29, 1990 from
Court Rules Attorney Christine Johnson to the supreme court and the
administrative director of the court system.
The former version of AS 18.85.120(c) stated, in pertinent
part: "To the extent that a person is able to provide for an
attorney, the other necessary services and facilities of
representation, and court costs, the court may order the person to
pay for these items."
Footnote 2:
See id.
Footnote 3:
The rule reads: "Upon conviction of an offense, [or] revocation
of probation, [or] denial of a motion to withdraw plea, [or] denial
of a motion brought under Criminal Rule 35.1 [i.e., denial of a
petition for post-conviction relief], the court shall prepare a
notice of intent to enter judgment for the cost of appointed counsel
in accordance with [the schedule of costs contained in] paragraph
(d) of this rule[.]"
Footnote 4:
944 P.2d 1181 (Alaska App. 1997).
Footnote 5:
899 P.2d 103 (Alaska 1995).
