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The same issue came up in another case issued yesterday, unpublished State v. Stacy.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.