THE STATE OF NEW HAMPSHIRE SUPREME COURT OF NEW HAMPSHIRE ORDER

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1 THE STATE OF NEW HAMPSHIRE SUPREME COURT OF NEW HAMPSHIRE ORDER R , In re August 3, 2016 Report of the Advisory Committee on Rules Pursuant to Part II, Article 73-a of the New Hampshire Constitution and Supreme Court Rule 51, the Supreme Court of New Hampshire amends Rule 29(e) of the New Hampshire Rules of Criminal Procedure, as set forth in Appendix A. The court also amends Rule 29(e) of the Strafford, Cheshire and Belknap County Rules of Criminal Procedure (renamed, effective January 1, 2017, the Strafford, Cheshire, Belknap and Merrimack County Rules of Criminal Procedure), as set forth in Appendix B. These amendments shall take effect on January 1, The court has reviewed the August 3, 2016 Report of the Advisory Committee on Rules (Committee) recommending, on a vote of 8-7, the adoption of amendments to New Hampshire Rule of Criminal Procedure 29(e) and Strafford, Cheshire and Belknap County Rule of Criminal Procedure 29(e), the alternative proposal submitted by Supreme Court Justice Robert J. Lynn, the record of the proceedings before the Committee, and the comments received in response to the Supreme Court s order of August 22, 2016 inviting comments on both proposals. Upon thorough consideration of the above materials, the court hereby adopts the amendments to Rule 29(e) as set forth in Appendices A and B attached to this order. The amendments adopted by the court incorporate all of the proposed changes to Rule 29(e) as to which there was agreement among the members of the Committee. The objective of these amendments is to create procedures designed to insure that no person will be incarcerated for failure to pay a fine, penalty assessment, or restitution (hereinafter referred to as assessments ), or failure to perform community service, unless a court has determined that the person has the ability to pay the assessment or perform the community service and has willfully failed to do so. The Supreme Court believes that the amendments will accomplish their intended objective, and expresses its thanks and appreciation to all those who participated in the formulation of these amendments. The court declines to adopt the provision of the Committee majority s proposal which would establish an automatic, across-the-board, right to courtappointed counsel paid for by the State for all indigent defendants facing the possibility of incarceration for failure to pay an assessment or perform community service in circumstances where the offense would not otherwise

2 permit incarceration for the purpose of criminal punishment. Neither this court nor the United States Supreme Court has held that such a right is mandated under the New Hampshire or the United States Constitutions. That being the case, the court concludes that the creation of such a right as a matter of public policy, whether permanently or on a so-called pilot basis, is a matter properly left to the New Hampshire legislature. The court notes that New Hampshire law has long recognized the authority of courts to appoint a lawyer at state expense on a case-by-case basis for an indigent defendant facing incarceration for civil contempt where the circumstances of the particular case are sufficiently complex or where other special circumstances exist, see Duval v. Duval, 114 N.H. 422, (1974), and the amendments the court approves today specifically recognize such authority. The other differences between the amendments the court adopts today and those proposed by the Committee majority concern: (1) the information that a court may consider in determining whether a person has the ability to pay or to perform and has willfully failed to do so, and (2) the party that bears the burden of proof of demonstrating justification for failing to pay or to perform once the fact of such failure has been established. The amendments adopted by this court are consistent with existing New Hampshire law on these matters, whereas the Committee majority s proposals would change existing law in a manner that likely would make it more difficult to collect assessments from persons who have the ability to pay but have willfully failed to do so. DALIANIS, C.J., and HICKS, LYNN and BASSETT, JJ., concurred. CONBOY, J., concurring in part and dissenting in part. I respectfully dissent to the extent that I would adopt that part of the rule amendment proposed by the majority of the court s rules advisory committee that would establish a one-year pilot program, with renewal subject to legislation. The proposed pilot program, endorsed by the circuit court administrative judges, would make appointment of counsel, at state expense, available to all indigent defendants for final ability-to-pay-assessment hearings at which incarceration is a possible outcome. See August 3, 2016 Advisory Committee on Rules report at In all other respects, I agree with the rule adopted today. October 17, 2016 ATTEST: Eileen Fox, Clerk Supreme Court of New Hampshire 2

3 APPENDIX A Delete New Hampshire Rule of Criminal Procedure 29(e) and replace it with the following: (e) Monetary Assessments (1) Fines, restitution or penalty assessments (hereinafter collectively referred to as assessments ) imposed by the court shall be due and payable on the date the sentence is imposed. Where a defendant indicates an inability to pay forthwith, the defendant shall complete an affidavit of resources, under oath, prior to leaving the courthouse. The court will then determine whether the defendant has the financial ability to pay the assessment. (2) The determination of a defendant s financial ability to pay the assessment shall be made by comparing the defendant s assets and income with the amount of the assessment. The defendant s assets shall include all real and personal property owned in any manner by the defendant, unless exempt from execution, levy, attachment, garnishment, or other legal process under any state or federal law. The defendant s income shall include all income, whether earned or not, from any source, unless exempt from execution, levy, attachment, garnishment, or other legal process under any state or federal law, and shall be reduced only by the amount of expenses which are reasonably necessary for the maintenance of the defendant and his dependents and by the amount of defendant s anticipated or current obligation to repay the Office of Cost Containment for the cost of appointed counsel. As a court may do when considering an obligor s ability to pay child support, alimony, or other indebtedness, the court also may consider: (1) spousal, partner and family income or assets to the extent they are available to the defendant; (2) the defendant s ability to access credit; and (3) the diligence exercised by the defendant in pursuing employment or other means of satisfying his financial obligations. (3) In any case where the court finds that the defendant is unable to pay the assessment either on the date the sentence is imposed or later, the court may, if otherwise permitted by law: (i) defer or suspend payment of all or part of the assessment or order periodic payment; or (ii) allow the defendant to perform community service, pursuant to a plan submitted to and approved by the court. In any such deferral or order of periodic payment, the court shall, pursuant to RSA 490:26-a, II-a, include a $25.00 fee to be added to the assessment. Every hour of verified community service shall be applied against a fine at the rate of $15.00 an hour. A community service plan approved under this paragraph shall take into account the defendant s circumstances including but not limited to age, disability, health, employment, and access to child-care and transportation. 3

4 (4) Conduct which the court finds is a willful failure to pay an assessment or to perform community service as ordered may be punishable as civil contempt of court subject to the provisions of RSA 618:9. Willful failure to pay means a defendant has intentionally chosen not to pay the assessment when he has had the ability to do so. Upon a showing satisfactory to the court that a defendant has failed to pay an assessment ordered by the court, the burden of proof shall be upon the defendant to establish by a preponderance of the evidence that he or she does not have the ability to pay and that he or she has exercised reasonable diligence in pursuing the means to pay. (5) No defendant shall be incarcerated for nonpayment of an assessment or non-performance of community service unless the Court, having conducted an ability-to-pay or ability-to-perform hearing which includes making specific inquiry of the defendant concerning his financial circumstances and his reasons for nonpayment or non-performance, concludes that the defendant willfully failed to pay the assessment or perform community service. (6) Prior to conducting an ability to pay or ability to perform hearing at which incarceration of the defendant for civil contempt may be imposed if the court finds that the defendant has willfully failed to pay an assessment or perform community service, the court shall provide the defendant with a financial affidavit and direct that the defendant complete the affidavit and provide it to the court at the hearing. The court also shall provide reasonable advance notice to the defendant of the following: (a) that, as a result of the hearing, the defendant may be immediately incarcerated if the court finds that the defendant has willfully failed to comply with the court s prior order(s) to pay an assessment or perform community service; (b) that the issues at the hearing will be whether the defendant has the ability to pay the assessment or perform the community service previously ordered and has willfully failed to do so; that the defendant has the burden of proof with respect to these issues; and that the defendant should be prepared at the hearing to provide testimony and answer questions, present witnesses, and furnish documentation or other information bearing on the issues of his financial circumstances and ability to pay the assessment or perform the community service. (7) The court may appoint counsel at state expense to represent an indigent defendant at an ability to pay or perform hearing held pursuant to this rule in a case in which the court finds that the issues are of sufficient complexity or that other special circumstances exist such that it would be fundamentally unfair to require the defendant to proceed without counsel. (8) In any case where the court is considering the issuance of an order of commitment for willful nonpayment of an assessment, it may also consider whether an order of periodic payments is appropriate under the circumstances as 4

5 well as the appropriateness of the options set forth in paragraph (3) above. The court shall also make findings in writing or on the record of the facts upon which the court has made its determination that the defendant has willfully failed to pay the assessment or perform community service as ordered. 5

6 APPENDIX B Delete Rule 29(e) of the Strafford, Cheshire and Belknap County Rules of Criminal Procedure (renamed, effective January 1, 2017 the Strafford, Cheshire, Belknap and Merrimack County Rules of Criminal Procedure), and replace it with the following: (e) Monetary Assessments (1) Fines, restitution or penalty assessments (hereinafter collectively referred to as assessments ) imposed by the court shall be due and payable on the date the sentence is imposed. Where a defendant indicates an inability to pay forthwith, the defendant shall complete an affidavit of resources, under oath, prior to leaving the courthouse. The court will then determine whether the defendant has the financial ability to pay the assessment. (2) The determination of a defendant s financial ability to pay the assessment shall be made by comparing the defendant s assets and income with the amount of the assessment. The defendant s assets shall include all real and personal property owned in any manner by the defendant, unless exempt from execution, levy, attachment, garnishment, or other legal process under any state or federal law. The defendant s income shall include all income, whether earned or not, from any source, unless exempt from execution, levy, attachment, garnishment, or other legal process under any state or federal law, and shall be reduced only by the amount of expenses which are reasonably necessary for the maintenance of the defendant and his dependents and by the amount of defendant s anticipated or current obligation to repay the Office of Cost Containment for the cost of appointed counsel. As a court may do when considering an obligor s ability to pay child support, alimony, or other indebtedness, the court also may consider: (1) spousal, partner and family income or assets to the extent they are available to the defendant; (2) the defendant s ability to access credit; and (3) the diligence exercised by the defendant in pursuing employment or other means of satisfying his financial obligations. (3) In any case where the court finds that the defendant is unable to pay the assessment either on the date the sentence is imposed or later, the court may, if otherwise permitted by law: (i) defer or suspend payment of all or part of the assessment or order periodic payment; or (ii) allow the defendant to perform community service, pursuant to a plan submitted to and approved by the court. In any such deferral or order of periodic payment, the court shall, pursuant to RSA 490:26-a, II-a, include a $25.00 fee to be added to the assessment. Every hour of verified community service shall be applied against a fine at the rate of $15.00 an hour. A community service plan approved under this paragraph shall 6

7 take into account the defendant s circumstances including but not limited to age, disability, health, employment, and access to child-care and transportation. (4) Conduct which the court finds is a willful failure to pay an assessment or to perform community service as ordered may be punishable as civil contempt of court subject to the provisions of RSA 618:9. Willful failure to pay means a defendant has intentionally chosen not to pay the assessment when he has had the ability to do so. Upon a showing satisfactory to the court that a defendant has failed to pay an assessment ordered by the court, the burden of proof shall be upon the defendant to establish by a preponderance of the evidence that he or she does not have the ability to pay and that he or she has exercised reasonable diligence in pursuing the means to pay. (5) No defendant shall be incarcerated for nonpayment of an assessment or non-performance of community service unless the Court, having conducted an ability-to-pay or ability-to-perform hearing which includes making specific inquiry of the defendant concerning his financial circumstances and his reasons for nonpayment or non-performance, concludes that the defendant willfully failed to pay the assessment or perform community service. (6) Prior to conducting an ability to pay or ability to perform hearing at which incarceration of the defendant for civil contempt may be imposed if the court finds that the defendant has willfully failed to pay an assessment or perform community service, the court shall provide the defendant with a financial affidavit and direct that the defendant complete the affidavit and provide it to the court at the hearing. The court also shall provide reasonable advance notice to the defendant of the following: (a) that, as a result of the hearing, the defendant may be immediately incarcerated if the court finds that the defendant has willfully failed to comply with the court s prior order(s) to pay an assessment or perform community service; (b) that the issues at the hearing will be whether the defendant has the ability to pay the assessment or perform the community service previously ordered and has willfully failed to do so; that the defendant has the burden of proof with respect to these issues; and that the defendant should be prepared at the hearing to provide testimony and answer questions, present witnesses, and furnish documentation or other information bearing on the issues of his financial circumstances and ability to pay the assessment or perform the community service. (7) The court may appoint counsel at state expense to represent an indigent defendant at an ability to pay or perform hearing held pursuant to this rule in a case in which the court finds that the issues are of sufficient complexity or that other special circumstances exist such that it would be fundamentally unfair to require the defendant to proceed without counsel. 7

8 (8) In any case where the court is considering the issuance of an order of commitment for willful nonpayment of an assessment, it may also consider whether an order of periodic payments is appropriate under the circumstances as well as the appropriateness of the options set forth in paragraph (3) above. The court shall also make findings in writing or on the record of the facts upon which the court has made its determination that the defendant has willfully failed to pay the assessment or perform community service as ordered. 8