State v. Fuller

504 P.2d 1393, 12 Or. App. 152

Opinions

SCHWAB, C.J.

The sole question in this appeal which merits discussion is whether a sentencing court has authority to include among the conditions of probation the requirement that a defendant repay attorney fees and investigator fees that the county expended on his behalf because he was indigent at the time of trial. Such a sentence is authorized by ORS 161.665, 161.675 and 161.685,

Footnotes

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① enacted by the legislature in 1971. Oregon Laws 1971, ch. 743, §§ 80, 81 and 82, p 1899. Relying on James v. Strange, 407 US 128, 92 S Ct 2027, 32 L Ed (1972), defendant argues it is unconstitutional to require repayment of such fees as part of a sentence.

The Supreme Court in James v. Strange, supra, held a Kansas statute providing for recoupment of attorney fees from indigent defendants violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. However, the sole basis for this holding was that the Kansas law did not allow indigent defendants ordered to pay such fees all of the exemptions from execution provided for other judgment debtors. The court did not hold that a statutory scheme for recoupment of attorney fees on its face violated the Equal Protection Clause. Neither did it find such statutes on their face impaired a defendant’s Sixth Amendment right to counsel.

ORS 161.665(1) and 161.665(3) read together authorize a sentencing court to require a convicted defendant to repay certain costs if he is or will be able to pay them. A sentence requiring repayment of costs is never mandatory. Normally, the judgment for costs is docketed as a judgment in a civil action and enforced in the same manner as a civil judgment. ORS 137.180;② ORS 137.450;③ ORS 161.685(6). Alternatively, ORS 161.675(2) provides that when a defendant sentenced to repay costs is also placed on probation the court may make repayment of the costs a condition of probation. In this ease defendant received the sentence authorized by ORS 161.675(2). His contention that such a sentence is invalid presents three issues.

(1) Are fees of appointed defense attorneys and investigators “costs” which may be assessed against a convicted defendant under ORS 161.665?

(2) Is such a statute inconsistent with defendant’s right to counsel or to equal protection of the laws?

(3) Assuming a civil recoupment statute is valid under the Sixth and Fourteenth Amendments to the United States Constitution, is the repayment of costs as a condition of probation involving possible imprisonment under certain circumstances for nonpayment impermissible under the Equal Protection Clause?

(1)

The costs that a defendant may be required to repay are defined in ORS 161.665(2) as follows:

“Costs shall be limited to expenses specially incurred by the state in prosecuting the defendant. They cannot include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law.”

The state submits that the costs “specially incurred” in prosecuting a defendant include the costs of providing a court-appointed counsel and the payment of investigator’s expenses. These are, in fact, the principal expenses which the state “specially” incurs in prosecuting an individual defendant. The statute specifically excludes a jury fee or the costs of summoning jurors. In addition, most of the costs of the prosecution side of the case are excluded from consideration as costs. The “costs of prosecution” specifically do not include district attorneys’ salaries, sheriffs’ salaries, jurors’ fees, police investigations, etc. See, Minutes, Criminal Law Eevision Commission Meeting, May 14,1970, pp 27-30. Although the services of any attorney and investigator are used by and for a defendant’s benefit in the first instance, they are costs which the' state or county must pay if an indigent defendant is to be prosecuted. They are thus costs which are assessable as part of the sentence in a proper case.④

(2)

Argersinger v. Hamlin, 407 US 25, 92 S Ct 2006, 32 L Ed 2d 530 (1972), Gideon v. Wainwright, 372 US 335, 83 S Ct 792, 9 L Ed 2d 799, 93 ALR2d 733 (1963), and Stevenson v. Holzman, 254 Or 94, 458 P2d 414 (1969), all hold that a defendant facing trial which may result in imprisonment has the right to be represented by counsel, and that right cannot be denied him on the ground of indigency. No case says that counsel must be provided if the defendant has the ability to pay for counsel, but simply chooses not to spend the money for attorney fees. Neither does any decision of the United States or Oregon Supreme Court hold that the státe'may not recoup the cost of counsel fees if a defendant later becomes able to repay them.

Oregon’s recoupment statute provides that a defendant shall not be sentenced to repay costs “unless the defendant is or will be able to pay them,” and that the court may consider “the nature of the burden that payment of costs will impose,” including “manifest hardship on the defendant or his immediate family.” ORS 161.665(3) and (4). Thus, an indigent defendant is entitled to free counsel immediately (which is when he needs it), but may be later required to repay this cost if he “is or will be” able to do so, that is, if he has ceased or likely will cease to be indigent. A defendant is not denied counsel while he is indigent, and he is required to repay appointed counsel’s fee only if and when he is no longer indigent. If there is no likelihood that a defendant’s indigency will end, a judgment for costs cannot be imposed. ORS 161.665(3). If there appears to be the future possibility of ability to repay at the time of sentencing, but the defendant remains an indigent, the judgment for costs cannot be collected. The court retains jurisdiction to determine ability to pay. No denial of the exemptions from execution afforded to other judgment debtors is included in the Oregon statutes. ORS 161.665 to ORS 161.685 neither denies a defendant the right to counsel, nor discriminates against him because of poverty.

(3)

Where payment of costs is made a condition of probation the possibility exists that a defendant may not only have judgment for the costs entered against him, but he may, in fact, be subject to revocation of his probation. However, it is clear from the tenor of the recoupment statute that the discretion of the trial court to revoke probation for nonpayment of costs is sharply limited. Such revocation may only occur if the court specifically finds: (1) the defendant has the present financial ability to repay the costs involved (either all or by installments) without hardship to himself or his family, of., ORS 161.665(4); and (2) the defendant’s failure to repay (either. all. or by installments) is an intentional, contumacious default, cf., ORS 161.665(4). If the evidence adduced at a revocation hearing does not establish both of the above elements, not only is revocation improper, but the trial court may well consider remission of the unpaid costs pursuant to ORS 161.665(4). Given these substantial limitations on a trial court’s authority to revoke probation for nonpayment of costs, we perceive no constitutional infirmity with a sentence that places a defendant on probation on condition that he repay costs.

A sentencing court may very possibly consider the repayment of the expenses of prosecution, like that of restitution to the victim of crime, ORS 137.540 (10),⑤ rehabilitative. We see no good reason why a defendant should have the right to refuse to make restitution or pay costs imposed against him as a result of his own wrongdoing if in the future it is determined that his circumstances have changed so that he is able to pay without any hardship to himself or his immediate family. In many instances rehabilitation may involve a defendant’s doing the best he can to redress his victims, which may include both a particular victim and society as a whole.

We are aware that the Supreme Court of the state of California has decided this issue to the contrary in In Re Allen, 71 Cal2d 388, 78 Cal Rptr 207, 455 P2d 143 (1969), but for the reasons indicated above, we are not persuaded by that opinion.⑥

Affirmed.

ORS 161.665 provides:

“(1) The court may require a convicted defendant to pay costs.

“(2) Costs shall be limited to expenses specially incurred by the state in prosecuting the defendant. They cannot include expenses inherent in providing a constitutionally guaranteed jury trial or expenditures in connection with the maintenance and operation of government agencies that must be made by the public irrespective of specific violations of law.

“(3) The court shall not sentence a defendant to pay costs unless the defendant is or will be able to pay them. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.

“(4) A defendant who has been sentenced to pay costs and who is not in contumacious default in the payment thereof may at any time petition the court which sentenced him for remission of the payment of costs or of any unpaid portion thereof. If it appears to the satisfaction of the court that payment of the amount due will impose manifest hardship on the defendant or his immediate family, the court may remit all or part of the amount due in costs, or modify the method of payment under ORS 161.675.”

ORS 161.675 provides:

“(1) When a defendant is sentenced to pay a fine or costs, the court may grant permission for payment to be made within a specified period of time or in specified instalments. If no such permission is included in the sentence the fine shall be payable forthwith. , . ,

. “(2) When a defendant.sentenced to pay. a fine, or costs is also placed' on probation or imposition or execution of sentence is suspended, the court may make payment of.the fine or costs a condition of probation or suspension of sentence.”

ORS 161.685 provides:

“(1) When a defendant sentenced to pay a fine defaults in the payment thereof or of any instalment, the court on motion of the district attorney or upon its own.motion may require him to show cause why his. default should not be treated as contempt of court, and may issue a show cause citation or a warrant of arrest for his appearance.

“(2) Unless the defendant shows that his default was not attributable to an intentional refusal to obey the order of the court or to a failure on his part to make a good faith effort to make the payment, the court may find that his default constitutes contempt and may order him committed until the fine, or a specified part thereof, is paid.

“(3) When a fine is imposed on a corporation or unincorporated association, it is the duty of the person authorized to make disbursement from the assets of the corporation or association to pay the fine from those assets, and his failure to do so may be held to be contempt unless he makes the showing required in subsection (2) of this section.

“(4) The term of imprisonment for contempt for nonpayment of fines shall be set forth in the commitment order, and shall not exceed one day for each $25 of the fine, 30 days if the fine was imposed upon conviction of a violation or misdemeanor, or one year in any other case, whichever is the shorter period. A person committed for nonpayment of a fine shall be given credit toward payment for each day of imprisonment at the rate specified in the commitment order.

“(5) If it appears to the satisfaction of the court that the default in the payment of a fine is not contempt, the court may enter an order allowing the defendant additional time for payment, reducing the amount thereof or of each instalment or revoking the fine or the unpaid portion thereof in whole or in part.

“(6) A default in the payment of a fine or costs or any instalment thereof may be collected by any means authorized by law for the enforcement of a judgment. The levy of execution for the collection of a fine shall not discharge a defendant committed to imprisonment for contempt until the amount of the fine has actually been collected.”

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ORS 137.180 provides:

“A judgment that the defendant pay money, either as a fine or as costs and disbursements of the action, or both, shall be docketed as a judgment in a civil action and with like effect, as provided in ORS 18.320, 18.350 and 18.400.”

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ORS 137.450 provides:

“A judgment against the defendant in a criminal action or the private prosecutor, so far as it requires the payment of a fine or costs and disbursements of the action, or both, may be enforced as a judgment in a civil action.”

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It is clear from the Proposed Criminal Code, § 80, pp 76-7, that the Criminal Law Revision Commission intended the “costs” defined in ORS 161.665(2) include the costs of legal assistance furnished an indigent. Former ORS 137.205 provided for taxation against a defendant for the cost of legal assistance furnished to him, and the Proposed Criminal Code states, see Table, p XXV, that the intent of the Commission was that the substance of former ORS 137.205 be retained by. placing it in what is now ORS 161.665(2).

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ORS 137.540(10) provides:

“The court shall determine, and may at any time modify, the conditions of probation, which may include, as well as any others, that the probationer shall: ■

“(10) Make reparation or restitution to the aggrieved party for the damage or loss caused by offense, in an amount to be determined by the court.”

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The opinion of the California Supreme Court indicates that at least as of the date of that opinion California had no recoupment statutes similar to Oregon’s.

“The condition of probation under attack is the requirement that the petitioner ‘reimburse the County of San Mateo for court-appointed counsel through the Probation Department.’

“Section :1203.1 of the Penal Code provides for the terms and conditions which a court may impose in the granting of probation and prescribes the statutory limits upon the exercise of the trial court’s discretion in connection therewith. Since the section does not expressly authorize the imposition of the particular condition under attack here we must assume .that the court deemed it authorized under the omnibus clause ‘and other reasonable conditions, as it may determine aré fitting and proper to the end that justice may be done, that- amends may be made to society for the breach of the law, for any injury done to any person resulting from such breach and generally and specifically for the reformation and rehabilitation of the probationer * * (Italics added.)” In Re Allen, 78 Cal Rptr at 207-08. ■