Implementing State v. Rieger: The One-Set-of-Costs-Per-Sentencing-Episode Rule

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In State v. Rieger, ___ N.C. App. ___, 833 S.E.2d 699 (2019), the Court of Appeals held that court costs should be assessed only once for all related charges that are adjudicated together. I wrote about the case here. Today’s post looks at how the appellate courts have applied Rieger since it was decided last October.

First, a quick refresher on Rieger. Under G.S. 7A-304(a), “[i]n every criminal case . . . wherein the defendant is convicted” the defendant shall pay the court costs set out in the statute. In Rieger, the Court of Appeals interpreted “criminal case” to refer not to each individual charge for which the defendant is convicted, but rather to all criminal charges stemming from the same underlying incident that are adjudicated together. With that in mind, when a defendant is sentenced for multiple convictions and multiple judgments are entered, costs should attach to only one of them.

A handful of post-Rieger cases have applied the new rule, clarifying (to some degree) how it should work in practice.

In unpublished State v. Stacy, No. COA19-465, 2020 WL 549010 (N.C. Ct. App. Feb. 4, 2020), the defendant was convicted on two weapon possession charges arising out of the same incident. On July 25, 2018, the trial court assessed costs in both of the active sentence judgments, $522.50 in one case, $372.50 in the other—both apparently imposed as a civil judgment. On appeal, the Court of Appeals vacated the trial court order, concluding that under Rieger, costs are to be imposed in only one of the judgments. Note the application of the rule to these judgments that were entered over a year before Rieger was decided, but that were still pending on appeal after the rule came into effect. I would think the rule would have similar reach for many other cases on appeal, and presumably for many defendants who are still on probation or otherwise subject to consequences for unpaid costs that run afoul of the Rieger rule.

Unpublished State v. Martin, ___ N.C. App. ___, 836 S.E.2d 789 (2020), reached a similar result. In Martin, the defendant was convicted of four crimes which were consolidated into two judgments on September 12, 2018. The court imposed over $500 in court costs in each case, again with all money in each case ordered “to be straight civil judgment.” As in Rieger and Stacy, the court concluded in Martin that when judgments stemming from the same underlying event are adjudicated together, only one set of costs applies. The Court of Appeals vacated one of the two judgments and instructed the trial court to enter a new one for it that does not include costs.

Finally, unpublished State v. Kelly, ___ N.C. App. ___, 835 S.E.2d 65 (2019), presents another Rieger wrinkle related to multiple costs in the same judgment. In Kelly, the defendant was convicted of several drug crimes, three of which required lab reports. Three of the convictions were consolidated into a single judgment, for which the State requested and the judge imposed three $600 lab fees, totaling $1,800—again, all imposed as a civil judgment. The Court of Appeals concluded that the trial court erred by ordering the lab fee three times because all of the convictions arose from the same underlying event, and were therefore part of the same case under Rieger. So, if you were ordering multiple lab fees like that, Kelly indicates—in unpublished fashion—that you should not.

Some have told me Rieger isn’t a big deal because judges in their district already had a practice of waiving costs for all but one conviction. I don’t know how common that practice is, but it wasn’t the approach used in these recent unpublished cases. And to be clear, waiving costs in all but one case isn’t what Rieger says to do. Under Rieger, the court doesn’t have to waive costs for all but one judgment because, under the court’s interpretation of G.S. 7A-304(a), there simply are no costs for the other judgments. There is therefore no requirement for notice, findings, or reporting of any cost waiver. And it would be wrong to impose costs for any of those other convictions as a civil judgment, because there are no costs to docket.

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