In case you missed it, there is a new method of obtaining relief from criminal monetary obligations. Rule 28 of the North Carolina General Rules of Practice was adopted in December of last year and became effective on Jan. 1, 2022. The rule is titled “The Equitable Imposition of Monetary Obligations in Criminal and Infraction Cases Based on the Defendant’s Ability to Pay.” It directs trial courts to determine the defendant’s ability to pay before imposing any discretionary monetary obligations in covered cases. The Administrative Office of the Courts has rolled out a new form, AOC-CR-415, to assist with implementation. The new rule and form provide a pathway to relief for a substantial number of current and past defendants. I have created a webinar discussing the details here, which can be viewed for free or for a small fee if CLE credit is desired. In the spirit of the rule, the .75 hour of CLE credit is offered at a discounted rate. Check it out or read on for some frequently asked questions about the rule.
Which Cases Are Eligible? The language of the rule limits application to criminal and infraction cases where the court has discretion to impose monetary obligations. Where there is a mandatory cost (like the fine in drug trafficking cases), the rule does not apply. Given the volume of cases in district court, it will likely have the most impact there, but the rule applies equally to any felony and misdemeanor case where the court has discretion to impose financial obligations.
Does This Apply to Past Convictions? The language of Rule 28 focuses on the point at which monetary obligations are imposed, but the AOC form clearly contemplates its use both before and after sentencing. Regardless, there are several statutes that allow a person to petition for relief from a monetary obligation, and first page of the form would serve as a helpful guide to the information a person would want to have when requesting relief. A person who has resolved the underlying case but still owes money beyond their ability to pay may file the form and ask the court to excuse the debt. This interpretation is consistent with the terms of the class-action settlement recently entered into by the North Carolina Division of Motor Vehicles, under which people with license suspensions resulting from a failure to pay have been alerted to the existence of this pathway for potential relief. Some courts may ask that you identify the specific statute under which relief is being requested (for example, G.S. 15A-1363 for unpaid fines or costs, G.S. 15A-1340.39 for restitution, G.S. 20-24.1 for failure to pay suspensions, etc.). To the extent AOC-CR-415 does not cite to the relevant authority, the form could be amended to include it, or a more specific motion incorporating any additional authority could be drafted, using the structure of the form motion as a guide.
Which Monetary Obligations Can Be Excused? Basically, all of them that are not mandatory. Rule 28 references costs, fees, fines, restitution, and other court-imposed financial obligations.
What About Restitution? The rule applies to restitution, but there are some wrinkles. Restitution is mandatory in cases covered by the Crime Victim’s Rights Act (“CVRA”). Readers may recall that the CVRA applies to any offense against a person and to certain felony property crimes (as Jamie Markham discussed here). A partial restitution award in a CVRA case is possible where the trial court determines that the full amount of restitution is beyond the defendant’s ability to pay. In that case, the record need only reflect the reason for the partial award, such as the defendant’s lack of ability to pay. Where the restitution award in a CVRA case exceeds $250, the court may enter the award as a civil judgment (more on those in a moment). In cases not falling under the CVRA, restitution is wholly within the discretion of the court. The court can order partial restitution in those cases, but recent case law indicates that the court should not order a civil judgment in a non-CVRA case, at least not immediately. See State v. Crew, ___ N.C. App. ___, 2022-NCCOA-35 (Jan. 18, 2022).
What About Court Costs? While court costs can only be waived with findings of fact and conclusions of law that just cause exists to warrant waiver, the form has the necessary language built in, with space for a judge to make any findings or conclusions in support. There is no guidance about what constitutes just cause, and it seems likely that any logical reason will do—including that the defendant simply lacks the ability to pay the costs.
What About Other Costs? Most everything else can be waived or not imposed without any special findings or rules. These include jail fees for splits and other sentences imposed as a part of probation, as well as lab analysis and analyst testimony fees. (As an aside, the new remote testimony procedures for lab analysts may provide an additional justification for reducing, waiving, or not imposing the analyst testimony fee in district court cases, since the analyst can now appear remotely under G.S. 15A-1225.3(a1). The current version of that statute is not yet available on the General Assembly’s website but can be viewed here at page 351.). Satellite-based monitoring fees, probation supervision fees, and house arrest fees can likewise be waived or not imposed.
What About the Community Service Fee? Jamie wrote about the community service fee here. As he noted, there is no explicit authority to waive the community service fee under G.S. 143B-1483 (formerly G.S. 143B-708). In practice, the fee is waived at times, and defenders should consider making an equity argument for waiver or remittance when needed.
What About Attorney Fees? The attorney appointment fee is mandatory and not waivable per G.S. 7A-455.1(b). For actual attorney fees, G.S. 15A-1343(e) authorizes a trial court to grant relief from appointed attorney fees for someone on probation where it finds extenuating circumstances. That statute may provide persuasive authority to remit the fees after completion of a sentence as well.
What About Civil Judgments? When I was practicing, it was routine to request that monetary obligations be converted to a civil judgment as a way of affording some relief to the client lacking the ability to pay. While a civil judgment does permit the client to walk out of the courtroom without an immediate obligation to pay, the obligation does not disappear and may be recouped a variety of ways for at least 10 years and sometimes longer. It does not provide actual relief to the client and merely defers the obligation to pay. Many monetary obligations carry interest once converted to a civil judgment (civil judgments are discussed in detail here). Additionally, trial courts may be less likely to reduce the obligations when they are ordered as a civil judgment. Civil judgments should therefore only be requested as a last resort after attempts to obtain actual relief from the monetary obligations have been exhausted.
How Can I Help My Clients? Defense attorneys should assist the client in gathering any relevant documentation in support of the client’s financial situation, help them complete the form motion, and potentially prepare the client or other witnesses to testify about their financial situation. The burden is on the defendant to demonstrate the need for relief, so be prepared to present evidence and argue any relevant statutory, equity, and constitutional grounds in support. Proof that the client’s income is below the federal poverty guidelines or receives federal benefits needed to make basic living expenses likely supplies compelling evidence of a lack of ability to pay.
How Can the Court Prepare? First and foremost, trial courts should be familiar with the rules regarding what costs can be waived or remitted and what, if any, findings are necessary to support the relief. I’ve tried to cover most of the basics here, but a bench card prepared by Jamie Markham provides a helpful summary. Trial courts should also ensure that AOC-CR-415 is available to the public by making them available to pro se defendants in the courtroom and in clerk’s offices. To ensure pro se defendants are aware of this mechanism, an announcement could be made at the beginning of court and signs could be posted in the clerk’s office or other parts of the courthouse. Depending on the volume of motions filed in your district, it may make sense to schedule a regular, designated time or day where the motions can be heard and hearings conducted as needed.
There’s more detail in the webinar, but you’ll have to watch it to see. If you have questions about the process or want to let us know how these motions are being handled in your district, I can always be reached at dixon@sog.unc.edu.