Sex offender treatment costs cannot be remitted

In considering a sex offender’s bid for remittance of treatment expenses, the court found the statute allows remittance of “fines and costs,” but does not extend to costs associated with sex offender treatment class, polygraph tests or a GPS monitor.

Background

On March 1, 2017, defendant pleaded no contest to one charge of indecent exposure and three charges of obscene sexual display. He was sentenced to incarceration for 12 months on each charge. The court suspended eight months on the indecent exposure sentence, eight months on two of the obscene sexual display charges and six months on the third obscene sexual display charge, resulting in an active sentence of 18 months. The court also ordered defendant to submit to sex offender treatment, to be placed with a GPS monitor and to pay fines associated with each charge.

On Aug. 14, 2017, the office of Community Corrections Services of Chesterfield County reported that defendant was non-compliant with the sex offender treatment and GPS monitor requirements of his sentence. Defendant came before the court on Sept. 28, 2018, for a show cause hearing. After considering the evidence and argument, the court found defendant in violation of his probation and in contempt of court, and revoked the previously suspended sentences. However the court again suspended portions of these sentences.

Defendant was thereafter found guilty again for being in violation and contempt of court, and the court revoked the previously suspended sentences. The court re-suspended each sentence, resulting in no active sentence.

On Aug. 7, 2017, defendant moved to modify his sentence. He argued the sex offender treatment class, polygraph and GPS requirement carry costs that he was unable to pay. The court denied his motion. Defendant has now filed a motion for remittance of fines and costs.

Analysis

Virginia Code § 19.2-358(A)-(C) allows the court to remit, in whole or in part, fines, costs or penalties upon a showing the defendant’s failure to pay is not attributable to an intentional refusal or a failure to make a good faith effort to obtain the necessary funds.

The court first finds that the outstanding fines and costs assessed by the court on each of the four offenses fall within the scope of the statute. However, the fact that the sex offender treatment class, polygraph and GPS requirement carry costs does not transmute them from a condition of the sentence into fines, costs, forfeitures or penalties. Accordingly the court finds that Code § 19.2-358 is applicable only to the defendant’s fines and costs, and is not applicable to the sex offender polygraph, sex offender treatment and GPS.

The second issue for the court is whether defendant’s failure to pay the fines and costs is excusable under the statute. Although the defendant has submitted a financial statement showing his monthly income and expenses, the court declines to make a finding at this point. The court is not, at this time, considering imposing any sanctions on the defendant. Until that time, his motion is premature.

Defendant’s motion to remit fines and costs is denied as to the sex offender polygraph, sex offender treatment and GPS condition of his sentence. His motion continues under advisement with regard to fines and costs.

Motion granted.

Commonwealth v. Greenway, Case Nos. CR1603339-01, 02; CR1600711-01, 02, Oct. 29, 2018. Chesterfield Cir. Ct. (Johnson). VLW No. 018-8-107, 9 pp.