The state Court of Appeals has remanded a pay-or-appear case back to Jefferson County, saying defendant James M. Stone should have been provided with an attorney during fine-payment proceedings involving drug-possession and theft-related crimes.
Stone was sentenced Sept. 28, 2001, to 105 days in jail and 12 months of community custody and was ordered to pay $2,860 in fines, court costs and other legal financial obligations, including interest, after pleading guilty to second-degree theft and unlawful possession of a controlled substance, methamphetamine, according to court documents.
He was subsequently sentenced in 2009 to 55 days for failing to make regular payments but was not explicitly told he could have a lawyer, a denial of his due-process rights, the court ruled.
The court vacated the sentences and remanded the case back to Jefferson County, which has until Feb. 3 to appeal the case to the state Supreme Court.
If the case is not appealed, Stone will likely be asked to return to Superior Court to answer why he can’t pay the fines and court costs, which now likely several thousand dollars, said his attorney, Thomas Weaver of Bremerton.
The 2-1 court ruling will have no impact on similar pay-or-appear programs in Clallam County, District Court 1 Judge Rick Porter of Port Angeles and District Court 2 Judge Erik Rohrer of Forks said Saturday in separate interviews.
Pay-or-appear defendants who appear in Porter’s and Rohrer’s courts are explicitly told they are entitled to attorneys and that if they cannot afford an attorney, one will be provided, the judges said.
Under the pay-or-appear programs, which operate similarly in Superior and District courts in both counties, a person agrees to pay court-ordered legal financial obligations such as fines and other costs on a monthly basis.
If payments are missed, the person is ordered to appear in court to explain why.
Continued nonpayment can result in the issuance of an arrest warrant, with a person eventually serving jail time that he or she could avoid by being in the pay-or-appear program and paying court fines and costs on time.
Jefferson County Prosecuting Attorney Scott Rosekrans said Monday that the Stone case was unusual and that he cannot recall any other similar case involving lack of counsel for pay-or-appear defendants.
He said pay-or-appear defendants are told they are entitled to legal representation.
“We needed to do it in [the Stone] case, and we didn’t do it in that case,” Rosekrans said.
“I agree with that part of the opinion.”
But Weaver said Tuesday the case was not an anomaly.
“When I reviewed the case, I pulled up quite a few of the hearings on pay-or-appear,” Weaver said.
“I realized there were systemic problems with the pay-or-appeal calendar,” he added.
“I believe they were routinely denying counsel to people they were putting in jail for violations.”
Porter runs the pay-or-appear programs for Clallam County’s District 1 Court and county Superior Court.
The program was a campaign issue when Porter won re-election in 2010.
“We are doing exactly what the state [Court of Appeals] says we should be doing,” Porter said.
“For us, it was actually a great decision because it validates everything we’ve been doing since I started the program.”
Stone is homeless and now lives in Spokane, Weaver said.
After Stone pleaded guilty to theft and drug charges, he was put on the county pay-or-appear program, under which he made payments for 29 consecutive months and fell behind before his arrest on a third bench warrant.
At his Superior Court enforcement hearing, “the court did not orally advise Stone of a right to counsel or ask him whether he wished to have an attorney appointed,” Appeals Court Judge Marywave Van Deren said in the majority opinion,
Van Deren added that the Superior Court judge also did not credit those 10 days of jail costs to his fines and other court costs, as it should have.
“Stone argues that the Jefferson County policy of placing convicted felons on a pay-or-appear calendar requiring them to represent themselves violates fundamental due-process rights,” Van Deren said.
“Under Stone’s circumstances, we agree.”
The judgment criticized by the appeals court was signed by the late Theodore Spearman, a visiting Superior Court judge from Kitsap County, and court commissioner and Port Townsend lawyer Peggy Ann Bierbaum, who was not available for comment on the case Tuesday morning.
Rosekrans and Thomas Brotherton, also from the Jefferson County Prosecuting Attorney’s Office, had argued to the Court of Appeals that Stone was not entitled to counsel because pay-or-appear enforcement hearings are civil proceedings.
The court disagreed.
“We hold that the [legal financial obligations] enforcement proceedings are criminal in nature,” Van Deren said.
“Our federal and state constitutions both guarantee a criminal defendant the right to effective counsel,” she said.
“Stone’s lack of counsel during these proceedings created an ‘asymmetry of representation’ because a prosecuting attorney represented the state in the adversarial proceeding,” Van Deren said.
“As the United State’s Supreme Court has observed, ‘The average defendant does not have the professional legal skill to protect himself when brought before a tribunal with power to take his life or liberty, wherein the prosecution is presented by experienced and learned counsel.’”
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Senior Staff Writer Paul Gottlieb can be reached at 360-417-3536 or at paul.gottlieb@peninsuladailynews.com.