Criminal Practice – Constitutional – Due Process – Representation Costs – Notice & Hearing

State v. Mosteller (Lawyers Weekly No. 012-140-16, 8 pp.) (Valerie Zachary, J.) Appealed from Cleveland County Superior Court (Jeffrey Hunt, J.) N.C. App. Unpub.

Holding: Although (1) defendant was present during sentencing, (2) the imposition of attorney’s fees and an appointment fee is authorized by statute, and (3) the civil judgment entered against defendant for the costs of his representation is not considered to be part of his sentence, defendant’s due process rights were violated when these costs were imposed against him without notice and an opportunity to be heard.

We vacate the civil judgment against defendant and remand without prejudice to the state’s right to seek the imposition of attorney’s fees and an appointment fee, provided that defendant is given notice and an opportunity to be heard.

After defendant was convicted of indecent liberties, the trial court discussed with defense counsel whether he was appointed, indicated that counsel could submit his representation hours to the court later, and said defendant would “be responsible for attorney’s fees….”

The instant case is functionally indistinguishable from State v. Jacobs, 172 N.C. App. 220, 616 S.E.2d 306 (2005). In fact, in this case, the trial court did not even address defendant directly. Pursuant to State v. Webb, 358 N.C. 92, 591 S.E.2d 505 (2004), Jacobs, and similar cases, we are required to vacate the civil judgment entered against defendant for his court-appointed attorney and the appointment fee.