Commitment Case Analysis

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The decision “fills in [the] legislative silence” on the procedures to be followed before entering a commitment pursuant to sec. 973.07, with the minimum requirements in Fuller v. Oregon, 417 U.S. 40 (1974).

However, it does not fill in the silence with the actual requirements of the Oregon statute at issue in Fuller.

The Oregon statute, as the court notes, required that the defendant’s ability to pay his court-appointed attorney at three separate points in the process: at sentencing; at a hearing, if the defendant requests remission of the fee after sentence on grounds of manifest hardship; and after arrest for failure to pay.

The decision in the case at bar does not require this much.

The court held, “the United States Constitution requires the circuit court to determine ability to pay at some point prior to commitment for failure to pay attorney fees.”

Thus, the court need not determine at sentencing whether the defendant is able to pay, as long as the court makes inquiry prior to ordering him committed.

Making the determination at the sentencing hearing would be problematic anyway. The attorney would not yet know the total amount of his fees, and neither party would likely be in a good position to assess the defendant’s ability to pay.

If the defendant has no assets and is on the way to jail, there is likely no present ability to pay, and any determination of future ability to be would necessarily be based on speculation. Effectively, in most cases, the court would have to conclude that it cannot find that ability to pay has been shown, even though it may be very feasible that, once the defendant serves a sentence, he could.

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Under the Oregon statute, in contrast, if there is no ability to pay at the time of sentencing, that is the end of the matter.

As a result, if the State and the court actually want to recoup attorney fees, in most cases involving a jail sentence, the wisest course of action is not to make any findings at the sentencing itself.

However, an order must nevertheless be entered, leaving the amount of fees open, if necessary. In State v. Grant, 168 Wis.2d 682, 484 N.W.2d 370 (Ct.App.1992), no mention was made of attorney fees at the defendant’s sentencing. Two months later, the prosecutor moved the court to order that the defendant pay the county for the cost of his attorney.

The circuit court granted the motion, but the court of appeals reversed, holding that costs must be ordered at the time of sentencing.

– David Ziemer

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David Ziemer can be reached by email.