                IN THE COURT OF APPEALS OF THE STATE OF IDAHO

                                        Docket No. 37232

STATE OF IDAHO,                                  )     2011 Unpublished Opinion No. 357
                                                 )
         Plaintiff-Respondent,                   )     Filed: February 10, 2011
                                                 )
v.                                               )     Stephen W. Kenyon, Clerk
                                                 )
CHRISTOPHER MICHAEL HUCKABY,                     )     THIS IS AN UNPUBLISHED
                                                 )     OPINION AND SHALL NOT
         Defendant-Appellant.                    )     BE CITED AS AUTHORITY
                                                 )

         Appeal from the District Court of the First Judicial District, State of Idaho,
         Kootenai County. Hon. John T. Mitchell, District Judge.

         Order for reimbursement of cost of court-appointed attorney, vacated, and case
         remanded.

         John M. Adams, Kootenai County Public Defender; J. Bradford Chapman,
         Deputy Public Defender, Coeur d’Alene, for appellant.

         Hon. Lawrence G. Wasden, Attorney General; Jennifer E. Birken, Deputy
         Attorney General, Boise, for respondent.
                   ________________________________________________

LANSING, Judge
         Christopher Michael Huckaby appeals from the district court’s order on intermediate
appeal from his misdemeanor conviction.         He contends that the district court abused its
discretion by ordering him to reimburse the county for the cost of his public defender’s services
rendered in the intermediate appeal. We vacate and remand.
                                                I.
                                        BACKGROUND
         Huckaby was charged with a misdemeanor, resisting and obstructing officers, in violation
of Idaho Code § 18-705. The magistrate court appointed a public defender to represent him.
After being convicted of the offense on a jury verdict, Huckaby appealed to the district court. He
continued to be represented by the public defender in the appeal and raised a number of claims of
error.   Following oral argument, the district court issued an appellate decision rejecting



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Huckaby’s claimed errors and affirming the conviction. Although the prosecutor did not request
reimbursement for public defender services on the appeal, and the issue was not raised in the
briefing or oral argument to the district court, the district court’s appellate decision ordered
Huckaby to reimburse the county in the amount of $500 for his public defender’s services in the
intermediate appeal. Huckaby appeals to this Court, asserting as his sole issue that the district
court erred in ordering reimbursement without having considered Huckaby’s ability to pay or
other relevant factors.
                                               II.
                                          ANALYSIS
       A court’s authority to order reimbursement by a criminal defendant to a county for the
cost of a court-appointed attorney is governed by I.C. § 19-854(d), which states:
              (d) A needy person who receives the services of an attorney provided by
       the county may be required by the court to reimburse the county for all or a
       portion of the cost of those services. The immediate inability of the needy person
       to pay the reimbursement shall not, in and of itself, restrict the court from
       ordering reimbursement.

I.C. § 19-854(d). 1 The word “may” in the first sentence of this subsection is permissive, Scott
Beckstead Real Estate Co. v. City of Preston, 147 Idaho 852, 854, 216 P.3d 141, 143 (2009), and
it denotes an exercise of discretion. Marcia T. Turner, L.L.C. v. City of Twin Falls, 144 Idaho
203, 211-12, 159 P.3d 840, 848-49 (2007). When this Court reviews a trial court’s discretionary
decision on appeal, we conduct a multi-tiered inquiry to determine: (1) whether the lower court
correctly perceived the issue as one of discretion; (2) whether the lower court acted within the
boundaries of such discretion and consistently with any legal standards applicable to the specific
choices before it; and (3) whether the lower court reached its decision by an exercise of reason.
State v. Hedger, 115 Idaho 598, 600, 768 P.2d 1331, 1333 (1989); State v. Wakefield, 145 Idaho
270, 273, 178 P.3d 635, 638 (Ct. App. 2007); State v. Waidelich, 140 Idaho 622, 623, 97 P.3d
489, 490 (Ct. App. 2004). In order for the appellate court to perform its function properly when
reviewing a discretionary decision, it must be informed of the reasons for the court’s decision.


1
       Even where reimbursement is not ordered by the court in the criminal action, I.C. § 19-
858(b) allows the county prosecutor to file suit against the defendant within three years to
recover the costs of provided legal assistance should the defendant become financially able to
pay.

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Quick v. Crane, 111 Idaho 759, 772, 727 P.2d 1187, 1200 (1986). Where the reasons are neither
obvious from the record nor stated by the trial court, “the appellate court is left to speculate about
the trial court’s perception of the law and knowledge of the facts.” Id. See also Sheridan v.
Jambura, 135 Idaho 787, 791, 25 P.3d 100, 104 (2001).
       Huckaby acknowledges that section 19-854(d) permits a reimbursement order even when
the defendant lacks the immediate ability to pay, but argues that the district court here
nevertheless abused its discretion because any court contemplating reimbursement must at least
consider the defendant’s present and future ability to pay as well as other relevant factors.
       The State contends that the second sentence in section 19-854(d), allowing an order of
reimbursement despite the defendant’s immediate inability to pay, renders an inquiry into the
defendant’s present and future financial status “superfluous.” The State’s argument raises a
question of statutory interpretation over which this Court exercises free review. State v. Hensley,
145 Idaho 852, 855, 187 P.3d 1227, 1230 (2008).
       We cannot agree with the State’s characterization of the effect of the second sentence of
subsection (d). That provision merely permits a court to order reimbursement even in the
absence of an immediate ability to pay; it does not require the court to do so. The decision
remains a discretionary one. Therefore, a defendant’s inability to pay, either immediate or long-
term, is not “superfluous” to a court’s discretionary decision under the statute.
       We move, then, to Huckaby’s argument that the district court’s order here was arbitrary
and an abuse of discretion because it was made without any information on which to predicate a
reimbursement decision. Huckaby points out that at the time of his appeal to the district court,
both his immediate and his longer-term ability to reimburse the county was obviously in question
as the magistrate had already determined him to be a needy person when the public defender was
initially appointed, Huckaby had been incarcerated for several months prior to his trial and
conviction in this case, and at the time of sentencing in this case he was facing a felony charge
and possible probation violation matters which could result in additional incarceration.
       In Wakefield, 145 Idaho at 273, 178 P.3d at 638, we addressed the somewhat analogous
issue of whether the district court had abused its discretion by increasing a probationer’s monthly
restitution payments without regard to his ability to pay. We reversed the order on the ground
that “the court abused its discretion by acting arbitrarily, without evidence before it to support
the decision made.” We conclude that the same holds true here. Although I.C. § 19-854(d) does


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not delineate any factors that must be considered by the district court before ordering
reimbursement of public defender fees, it is apparent that there are many factors which may be
relevant to that discretionary decision, including the defendant’s assets, current and prospective
earning capacity, number of dependents, restitution that may be owed to the defendant’s
victim(s), other expenses that the defendant may be required to pay including probation
supervision fees and fees for rehabilitation and treatment services, debts owed to other creditors,
and the monetary value of the legal services provided to the defendant. While it is not necessary
for the court to expressly consider any or all of these in every case, the court should consider
whatever pertinent facts that the parties may present on the reimbursement issue. Without
consideration of any factors, it cannot be said that a court has “reached its decision by an
exercise of reason.” See Hedger, 115 Idaho at 600, 768 P.2d at 1333.
       Here, it appears that the district court ordered the reimbursement sua sponte and without
notice to the parties. There was consequently no evidence submitted to the district court either in
support of or in opposition to the reimbursement, nor is there any indication in the record of a
reasoned application of any factors pertinent to the discretionary decision whether to order
reimbursement or, if so, in what amount. Accordingly, we are constrained to hold that the
district court’s order for reimbursement to the county for public defender services rendered on
the intermediate appeal was arbitrary and therefore an abuse of discretion. The matter may be
reconsidered on remand.
       The order of the district court for reimbursement of court-appointed attorney services is
vacated and the case is remanded for further proceedings consistent with this opinion.
       Judge MELANSON CONCURS.
       Chief Judge GRATTON, DISSENTING
       In State v. Weaver, 135 Idaho 5, 9, 13 P.3d 5, 9 (Ct. App. 2000), the Court noted that the
prior version of Idaho Code § 19-854 did not allow an order for reimbursement without regard
for whether the defendant had resources immediately available. The Court referenced, for
comparative purposes, a separate statute which contained language by which the defendant’s
immediate inability to pay did not preclude a reimbursement order.           Id.   Thereafter, the
legislature amended I.C. § 19-854 to include language similar to that reference in Weaver, and
I.C. § 19-854(d) now states that “the immediate inability of the needy person to pay the
reimbursement shall not, in and of itself, restrict the court from ordering reimbursement.”


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        As a general matter, I certainly agree that in order for a court to properly exercise its
discretion, consideration of facts and/or evidence regarding the issue at hand is necessary so that
the decision can be said to be rendered through “an exercise of reason.” See State v. Hedger, 115
Idaho 598, 600, 768 P.2d 1331, 1333 (1989). I further agree that, normally, the district court’s
reasoning is important to appellate review, although, in this case, the issue presented by Huckaby
is limited to the lack of evidence before the district court. I disagree, however, that consideration
of the facts and/or evidence which the majority deems necessary for the proper exercise of
discretion under the statute applicable here is, indeed, required. While evidence of the numerous
financial factors outlined by the majority may be appropriately considered, in this circumstance,
evidence regarding those factors is not necessary for the trial court to determine whether to order
partial reimbursement. Since the defendant’s inability to pay does not preclude a reimbursement
order, evidence regarding such ability is not strictly required. Even if evidence presented to the
trial court clearly points to an inability to pay, the court may still, pursuant to the terms of the
statute, order reimbursement without abusing its discretion. I do not see, then, how failing to
take evidence of and consider the myriad financial factors set out by the majority precludes an
order of partial reimbursement. 2
        If one assumes that the defendant does not have the financial ability to pay, an order of
reimbursement is still not precluded by the statute. The defendant’s financial circumstances may
change over time, even a relatively long period of time, and, if so, reimbursement is appropriate.
The present inability to pay does not foreclose a future ability to pay and the statute, therefore,
allows an order of reimbursement even though the presently available financial factors may
demonstrate an inability to pay. This is the result intended by the legislature. It is not unfair, as
the ability to pay is the ability to pay. The reimbursement order will only be satisfied at such
time as there exists an ability to pay.
        Moreover, here the district court was not operating in a vacuum when it ordered the
modest reimbursement amount of $500. Huckaby’s opening brief on appeal to the district court


2
        Perhaps an underlying difficulty here, although not directly raised by Huckaby, is the
question of notice, whether required by rule, statute, or due process principles. The order of
partial reimbursement found at the conclusion of the district court’s appellate decision does not
appear from the record to have been preceded by a motion or request. The order, then, seems to
have been entered as a matter of course, akin to an award of costs. However, whether this
manner of entry of the order was procedurally proper is not before the Court.

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was twenty-one pages and his reply brief encompassed eleven pages, evidencing the extent of
work performed. The district court determined that “not one” of Huckaby’s claims of error had
merit. Huckaby argues that his incarceration evidenced an inability to pay. He also points out
that the magistrate specifically noted Huckaby’s financial condition because of his incarceration
on the underlying charge as well as other pending charges. The district court was aware of
Huckaby’s underlying sentence and service thereof. The transcript of the trial and sentencing,
including the magistrate’s comments regarding Huckaby’s financial and custody status, was also
included in the record on appeal to the district court. Huckaby further states that he was required
to demonstrate need in order for the magistrate to appoint counsel. The district court was aware
that the public defender was representing Huckaby. In such cases, I.C. § 19-854(d) has long
provided that “a needy person who receives the services of an attorney provided by the county
may be required by the court to reimburse the county for all or a portion of the cost of those
services.” While the district court did not express its reasoning and there may be some question
as to the procedure for entry of the order, I cannot conclude that the district court acted arbitrarily
or without sufficient information to exercise its discretion in requiring reimbursement in the
amount of $500. Based upon the issues presented, I would affirm.




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