State v. Eldredge

State v. Eldredge (2005-039); 180 Vt. 278; 910 A.2d 816

2006 VT 80

[Filed 04-Aug-2006]

[Motions for Reargument Denied 30-Aug-2006]


       NOTICE:  This opinion is subject to motions for reargument under
  V.R.A.P. 40 as well as formal revision before publication in the Vermont
  Reports.  Readers are requested to notify the Reporter of Decisions,
  Vermont Supreme Court, 109 State Street, Montpelier, Vermont 05609-0801 of
  any errors in order that corrections may be made before this opinion goes
  to press.


                                 2006 VT 80

                                No. 2005-039


  State of Vermont                               Supreme Court

                                                 On Appeal from
       v.                                        District Court of Vermont,
                                                 Unit No. 1, Windham Circuit

  Michelle Eldredge                              December Term, 2005


  Karen R. Carroll, J.

  Dan M. Davis, Windham County State's Attorney, and Nathaniel K. Seeley,
    Deputy State's Attorney, Brattleboro, for Plaintiff-Appellee.

  Charles S. Martin of Martin & Associates, Barre, for Defendant-Appellant.


  PRESENT:  Reiber, C.J., Dooley, Johnson, Skoglund and Burgess, JJ.

       ¶  1.  REIBER, C.J.   Following a conviction of two counts of
  cruelty to animals, defendant Michelle Eldredge appeals a trial court order
  that she repay the costs of providing care to animals seized from her prior
  to trial without first determining her ability to pay.  We affirm.

       ¶  2.  In November of 2002, the Windham County Sheriff's Department
  conducted a search of defendant's home, pursuant to a warrant, and seized a
  number of animals that appeared to be malnourished.  The deputies brought
  the nine dogs, five cats, and one goat to the Windham County Humane Society
  (WCHS).  On December 17, 2002, defendant appeared in Windham District Court
  to answer three counts of animal cruelty in violation of 13 V.S.A. § 352,
  and was assigned counsel.  
   
       ¶  3.  On January 16, 2003, the State moved for forfeiture of
  defendant's animals pending resolution of the criminal charges.  After a
  March 21 hearing, the trial court ordered forfeiture of the animals by
  written order on April 16 and ordered the animals to remain in custodial
  care as long as defendant continued to post security deposits with WCHS. 
  Defendant appealed the forfeiture order as a collateral final order, but
  this Court denied permission to appeal.   Because defendant failed to post
  the required security deposits with WCHS in accordance with that order, the
  State moved for immediate forfeiture, which the trial court granted on
  October 6, 2003.  The animals had been in custody for eleven months.  Until
  the court ordered forfeiture, the animals had been boarded at WCHS and fed,
  exercised, and given necessary veterinary treatment and care pursuant to 13
  V.S.A. § 354(c).  One dog was destroyed, but the others recovered from
  their maladies and, upon forfeiture, were put up for adoption.  

       ¶  4.  On September 30, 2004, defendant was convicted by a jury of two
  counts of animal cruelty; one count had been dismissed prior to trial. 
  Defendant received a suspended sentence and was placed on probation.  In a
  written order on October 4, Judge Wesley required the State to present
  documentation of reasonable costs claimed by WCHS for providing care to
  defendant's animals from the time of seizure until forfeiture.  Defendant
  was invited to "indicate the basis for any objection to the entry of a
  restitution order for such costs, including: a) any claim that the costs
  are unreasonable, and b) any claim that her financial means preclude any
  present order for repayment."  The court stated that if defendant claimed
  only inability to pay, without opposition from the State, the court would
  "enter judgment for the amount claimed as restitution, but defer any
  repayment order until it may be established through enforcement proceedings
  initiated by the Restitution Unit that Defendant has the ability to make
  payments."  
   
       ¶  5.  At the subsequent January 18, 2005 hearing, over which Judge
  Carroll presided, counsel for defendant requested findings on her ability
  to pay prior to issuance of any repayment order.  The court denied
  defendant's request.  Two days later, the court issued its written Order on
  Repayment of Costs of Care.  In that order, the court found that most of
  WCHS's submitted expenses of boarding and caring for defendant's animals
  were reasonable and ordered repayment of those reasonable costs in full,
  less $900 defendant had already paid, for a total of $30,629.38.  In a
  footnote, the court wrote that it disagreed with defendant's position "that
  this is a restitution order requiring the Court to find an ability to pay,"
  on the grounds that: 

    WCHS is not a victim in this case, and repayment is specifically
    allowed pursuant to a separate . . . statutory scheme and not the
    statutes relating to restitution.  The ability to pay will only
    become an issue if the amount above is not paid and there is a
    request for a finding of contempt.  In that event, the Court will
    be required to find that Defendant has the ability to pay.  

  This appeal followed.  

                                     I.


       ¶  6.  Defendant argues that the trial court erred in entering
  judgment against her for the costs of providing care to her animals without
  determining her ability to pay.  At the outset, we agree with the trial
  court that this case does not fall within the bounds of our criminal
  restitution statutes, and so defendant cannot avail herself of the
  ability-to-pay provision therein. See 13 V.S.A. § 7043(c)(2).  The animal
  cruelty statutes contain their own specific provisions regarding repayment
  of costs to the temporary caretaker of a defendant's animals.  The trial
  court analyzed this case under the following statute: 

    In addition to any other sentence the court may impose, the court
    may require a defendant convicted of a violation under section 352
    or 352a of this title to: . . .  Repay the reasonable costs
    incurred by any person, municipality or agency for providing care
    for the animal prior to judgment.  If the court does not order a
    defendant to pay all the applicable costs incurred or orders only
    partial payment, it shall state on the record the reasons for that
    action. 

  13 V.S.A. § 353(b)(2) (emphasis added).  Defendant argues that the
  emphasized language means the Legislature intended that the trial court not
  simply calculate the costs of caretaking of the animals, but inquire into a
  defendant's ability to pay prior to ordering repayment of costs.  We do not
  agree.

       ¶  7.  Whether a trial court properly interprets a statute is a
  question of law which we review de novo.  Heffernan v. Harbeson, 2004 VT
  98, ¶ 7, 177 Vt. 239, 861 A.2d 1149.  When interpreting a statute our goal
  is to give effect to the intent of the Legislature, and to do so we first
  look at the plain, ordinary meaning of the statute.  State v. Baron, 2004
  VT 20, ¶ 6, 176 Vt. 314, 848 A.2d 275.  If the plain language is clear and
  unambiguous, we enforce the statute according to its terms.  In re Loyal
  Order of Moose, Inc., Lodge #1090, 2005 VT 31, ¶ 8, 178 Vt. 510, 872 A.2d 345 (mem.).

       ¶  8.  The plain meaning of the statutory language does not require
  the court to find an ability to pay before ordering defendant to pay the
  reasonable costs of caring for her animals.  The Legislature knows how to
  signal ability to pay as a precondition to judgment-by explicitly stating
  so.  See, e.g., 13 V.S.A. § 7043(c)(2) (requiring court to make findings
  regarding the offender's ability to pay in determining amount of
  restitution due); 15 V.S.A. § 798(a) (providing that inability to comply
  with child support order is a defense to license suspension penalty). 

       ¶  9.  The language in 13 V.S.A. § 353(b)(2) that a "court may require
  a defendant" to repay reasonable costs does allow the trial court
  discretion to order those costs. (Emphasis added).  But another, more
  recently enacted statute removes that discretion:

    If the defendant is convicted of criminal charges under this
    chapter[,] . . . the defendant or owner shall be required to repay
    all reasonable costs incurred by the custodial caregiver for
    caring for the animal, including veterinary expenses.  

  13 V.S.A. § 354(g)(1).  This subsection was enacted in 1998.  1997, No. 130
  (Adj. Sess.), § 11.  Section 353(b)(2), in contrast, was enacted in 1990. 
  1989, No. 270 (Adj. Sess.), § 2. 
   
       ¶  10.  If statutes conflict, we enforce newer statutes over older
  statutes.  Our Lady of Ephesus House of Prayer, Inc. v. Town of Jamaica,
  2005 VT 16, ¶ 16, 178 Vt. 35, 869 A.2d 145.  As § 354(g)(1) was enacted
  later in time, we enforce it and hold that not only did the trial court not
  have to determine defendant's ability to pay prior to ordering her to pay
  reasonable costs, it had no discretion to award any amount less than
  reasonable costs.  The only discretion allowed to the trial court,
  therefore, is to determine whether the claimed costs were reasonable.  

       ¶  11.  Defendant disagrees, and cites Keller v. State, 771 P.2d 379
  (Wyo. 1989) in support of her argument, but that case is inapposite.  The
  statutory language at issue in Keller is markedly different from 13 V.S.A.
  § 353(b)(2) and reads: "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 him to provide for
  their payment."  Keller, 771 P.2d  at 387 (citation omitted).  That language
  expressly requires a court to investigate a defendant's ability to pay and
  imposes costs only "[t]o the extent" that a defendant is "able to provide." 
  Id.  
   
       ¶  12.  The statute in Keller is also part of a recoupment scheme
  whereby a state seeks to recover costs from providing court-appointed
  counsel to indigent defendants.   Keller, 771 P.2d  at 387-88.  Much of
  defendant's cited case law, offered to prove that the court must find
  ability to pay, concerns the constitutionality of similar recoupment
  schemes.  Paramount in this line of cases is Fuller v. Oregon, 417 U.S. 40
  (1974), in which the United States Supreme Court examined whether Oregon's
  statutory scheme authorizing recoupment from indigent defendants of the
  costs of their defense impermissibly infringed upon the right to counsel. 
  The statute in Fuller was upheld because it was "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 became able to meet
  it without hardship."  Id. at 54.  See also State v. Morgan, 173 Vt. 533,
  535, 789 A.2d 928, 931 (2001) (mem.) (holding that under Fuller, Sixth
  Amendment requires trial court to make finding that defendant has or will
  have ability to pay reimbursement amount within statutory time period
  before imposing payment obligation).  

       ¶  13.  The cases upon which defendant relies do not support her
  argument.  The fact that Fuller and its progeny require a finding of
  ability to pay does not mean that one is required here because those cases
  concern whether schemes to exact payment for the costs of appointed counsel
  from criminal defendants unconstitutionally impinge upon the exercise of
  the Sixth Amendment right to counsel.  Here, no constitutional right to
  counsel is implicated; the trial court instead ordered defendant to pay the
  costs of caring for her animals during the litigation.  See State v.
  Diamondstone, 132 Vt. 303, 305, 318 A.2d 654, 656 (1974) (holding that
  court not required to find ability to pay before imposing criminal fine). 

       ¶  14.  Defendant also cites State v. Haught, 371 S.E.2d 54 (W.Va.
  1988), but in that case, the West Virginia Supreme Court of Appeals held
  that it was error to impose fines, costs, and attorneys' fees and to
  recommend that parole not be considered until all monies were paid, without
  first considering the defendant's financial resources and ability to pay. 
  Id. at 59.  Haught followed the principle in Bearden v. Georgia, 461 U.S. 660, 672 (1983), in which the United States Supreme Court held that in
  probation revocation proceedings for failure to pay fines or restitution, a
  court must inquire into the reasons for a defendant's failure to pay; see
  also Tate v. Short, 401 U.S. 395, 398 (1971) (holding that a state cannot
  "impos[e] a fine as a sentence and then automatically conver[t] it into a
  jail term solely because the defendant is indigent and cannot forthwith pay
  the fine in full.") (internal quotations omitted).  As to costs and fines
  that do not relate to the constitutional right to counsel, then, a court
  must consider the defendant's ability to pay only when seeking to imprison
  a defendant for failure to pay.
   

                                     II.

       ¶  15.  Finally, to the extent that defendant argues that the trial
  court abused its discretion in choosing an amount of costs to assess, we do
  not agree.  As decided above, the only discretion afforded to the trial
  judge was to determine which costs claimed by WCHS were reasonable.  We
  review such matters for an abuse of discretion.  See Human Rights Comm'n v.
  LaBrie, Inc., 164 Vt. 237, 251, 668 A.2d 659, 669 (1995) ("[T]he trial
  court is in the best position to determine a reasonable fee."). 

       ¶  16.  Specifically, defendant argues that the imposition of such a
  penalty would damage her creditworthiness, saddle her with prejudgment
  interest accruing at a rate of twelve percent per year, and render her
  ineligible for a homestead exemption in the event that she purchased a
  home.  Beyond their speculative nature, these claims do not address the
  reasonableness of the costs.  The trial court accordingly found, within its
  exercise of discretion, that the vast majority of the costs were
  reasonable.  It struck some of the proposed costs but assessed most of
  them, and was under no obligation to consider defendant's ability to pay
  prior to doing so.    

       Affirmed.  


       FOR THE COURT:



       _______________________________________
  Chief Justice