Two recent cases from the Court of Appeals highlight a recurring issue related to money in criminal cases: the requirement to give a defendant notice and an opportunity to be heard before entry of a judgment for attorney fees.
In State v. Patterson, ___ N.C. App. ___ (Feb. 4, 2020), the defendant was convicted of a felony in superior court in May 2018. At the time, the defendant’s lawyer didn’t have the total hours and corresponding fees tabulated, so it wasn’t until late June—about a month and a half later—that the trial judge entered a civil judgment against the defendant for $2,250 for attorney fees. There was no colloquy with the defendant about that.
The Court of Appeals vacated the civil judgment. As the court said in State v. Friend, 257 N.C. App. 516 (2018)—and in over two dozen subsequent appellate cases in the past two years—defendants are entitled to notice and an opportunity to be heard regarding the amount of an attorney fee award. Before entering a judgment for an award, the court should ask defendants—personally, not through counsel—whether they wish to be heard on the issue. Absent such a colloquy (or some other record evidence demonstrating that the defendant received notice), the fee award will, if appealed, be vacated and remanded for reconsideration of the issue. And that is what happened in Patterson.
The same issue came up in another case issued yesterday, unpublished State v. Stacy. The trial court never personally addressed the defendant about attorney fees, and so the Court of Appeals vacated the attorney fee award and remanded the case.
This is a tough issue for the trial courts. Indigent Defense Services rules allow an attorney up to one year from the date on which a case was finally disposed at the trial level to submit a final fee application. Most fee applications are submitted more quickly than that, but if there is any delay between sentencing and the finalization of the fee, it becomes difficult for the court to personally ask the defendant about the award. Even when the application is submitted on the day of sentencing (which appears to have been the case in Stacy), the trial judge may not have all of that information handy while actually speaking with the defendant.
To make matters worse, its not always clear in a particular case what the judgment is. I know that sounds strange, but let me explain. Often (more often than not, according to the judgments I see), the judge will write on criminal judgment itself that various monetary obligations—perhaps including attorney fees—are to be imposed as a civil judgment. 
In fact, that’s what happened in Patterson. The criminal judgment itself (which was a judgment suspending sentence, Form AOC-CR-603D) said that the as-yet undetermined Court Appointed Attorney Fee was imposed as a civil judgment.
And then a month and a half later the trial court entered the fee application (Form AOC-CR-225)—which is, on its face, another judgment. For the sake of clarity and to avoid the risk of multiple judgments being docketed for the same amounts, IDS prefers that fee applications be used as the one and only judgment for attorney fees in a case.
Winning a Friend argument on appeal may turn out to be Pyrrhic victory for some defendants. If proper notice and hearing were lacking, the defendant may indeed get the case remanded for entry of a proper judgment. But if the conviction still stands, the ultimate result could well be a proper judgment for trial counsel fees . . . plus additional fees for appellate counsel. There’s also the time and expense of bringing a defendant back to court for another hearing, particularly a defendant who might be incarcerated. Of course, constitutional due process is not always easy or convenient. But to the extent possible, this is probably an issue worth being aware of and getting right the first time whenever possible.
Thanks, Jamie
Jamie, I’ve been following these cases for a couple of years now, and as you noted, the reversals in part based upon the lack of opportunity to be heard by the Defendant being sentenced is practically universal.
The problem is obvious, the question: What is the solution?
It certainly would not be practical to continue judgment in the criminal case until counsel has all the tabulation ready to present a fee app.
It also would not be fiscally responsible to ship an inmate back to court from prison later to simply address attorneys fees.
And (as you discussed) when fees are ultimately imposed later, it may result in higher fees because counsel will have more work to do, thereby creating a situation where the delay harms the client.
Would it be constitutionally permissible for the Court to make an inquiry of the Defendant at the time of judgment notifying the defendant of the hourly rate to counsel, ask if the defendant wants to be heard on the amount of his/her attorney fee, and ask the attorney for his/her best guess if the fee app is not yet ready? Or put another way, is there any combination of questions that a judge can use to provide constitutionally adequate opportunity to be heard if counsel does not have the final tabulation done?
Because if the answer is no, the I think it has to fall to IDS to revamp the rules and make it part of the attorney’s duty to have the fee app ready at the time of judgment, not afterwards, because the court appointed attorneys are the only ones with the power to solve the problem. (I feel compelled to point out here that the State-prosecutor that is-has no dog in this fight, so this is literally a constitutional dispute between a defendant and his/her attorney, that result in the overturning of an otherwise completely valid and fairly reached judgment.)
Whereas, if the Court can provide an adequate opportunity to be heard without the final amount, then the proper method to do so needs to be presented universally to all the judges of the General Court of Justice to ensure that all defendants are being properly given their opportunity to be heard.