Ohree v. Commonwealth

COURT OF APPEALS OF VIRGINIA

Present: Judges Benton, Elder and Senior Judge Cole
Argued at Richmond, Virginia

CARLA JEAN OHREE
OPINION BY
v. Record No. 2112-95-2 JUDGE MARVIN F. COLE
JANUARY 13, 1998
COMMONWEALTH OF VIRGINIA

FROM THE CIRCUIT COURT OF HENRICO COUNTY
George F. Tidey, Judge
David P. Baugh for appellant.

Eugene Murphy, Assistant Attorney General
(James S. Gilmore, III, Attorney General, on
brief), for appellee.

Tried by the court sitting without a jury, appellant, Carla

Jean Ohree, was convicted of two counts of grand larceny by

welfare fraud. On appeal, Ohree argues that (1) the

Commonwealth's recoupment from a convicted defendant of the costs

incurred in providing a jury trial unconstitutionally burdens the

defendant's right to a jury trial as provided in the Constitution

of the United States, (2) the Commonwealth's recoupment from an

indigent defendant of the costs incurred in providing a jury and

court-appointed counsel, without a preliminary finding that the

defendant could or would likely be able to pay the costs,

violates the Constitution of the United States, (3) Ohree's

waiver of her right to a jury trial was involuntary because it

was made solely to avoid the imposition of jury costs, and (4)

requiring Ohree to pay a clerk's fee, Commonwealth's attorney

fee, recording fee, courthouse maintenance fee, drug enforcement
jurisdiction fee, and a fee for the Criminal Injuries

Compensation Fund violates the due process and equal protection

clauses of the Constitution of Virginia. Finding no error, we

affirm Ohree's convictions.

Facts

Following Ohree's indictment upon two counts of grand

larceny by welfare fraud, counsel was appointed to represent her.

Before trial, appellant filed a "Motion for Waiver of Jury Fee

and Court Appointed Attorney Fees for Indigent Defendant." In

her motion, Ohree alleged that she was indigent, that she was

"desirous of contesting the charge," but that she was "chilled in

her decision as to whether to elect trial by judge or trial by

jury by her inability to pay any fee for a jury should she be

convicted." The trial court refused to waive the jury and

court-appointed counsel fees. Ohree objected to the court's

ruling.
At the beginning of Ohree's trial, defense counsel again

raised his objection regarding the assessment of fees for a jury

and a court-appointed attorney. After the trial court overruled

the objection, Ohree pleaded not guilty to both charges. When

the judge asked Ohree whether she "wish[ed] to be tried by the

Court or by a jury," defense counsel interjected, "If I might,

Your Honor, we've already made an objection to that. We're

agreeing to be tried by the Court."

The Commonwealth presented evidence that the Aid to Families

2
of Dependent Children program had overpaid Ohree in the amount of

$873. The evidence demonstrated that Ohree had also been

overpaid $879 in food stamps. The judge found Ohree guilty of

both charges and sentenced her to two jail terms of twelve months

each. The sentences were suspended upon certain conditions,

including that Ohree "pay and the Commonwealth recover costs in

the total amount of $409.00."

Two days after the entry of the sentencing order, Ohree

filed an "Objection to Assessment of Costs and Motion to Set

Aside." Ohree alleged that she was indigent and without funds to

pay the costs of $409 as required by the sentencing order. She

argued that "some of the items listed as 'costs' are not directly

related to the expense of her prosecution and function as an

additional punishment in excess of that provided by statute."

Ohree also filed a "Motion to Stay Imposition of Punishment,

Costs and Restitution Pending Appeal." The trial court granted

her motion to stay the imposition of punishment and the payment

of costs pending the appeal. However, the record contains no

ruling of the trial court upon Ohree's objection and motion to

set aside the imposition of $409 in costs.
I.

Ohree first contends that by requiring her to pay the costs

of a jury had she elected a jury trial and been convicted, the

Commonwealth violated her constitutional right to a trial by a

jury. Ohree, however, elected to waive a trial by jury, and no

3
costs associated with a jury trial were assessed against her. 1

Code § 14.1-195.1 provides in part that "[e]very person

summoned as a juror in a civil or criminal case shall be entitled

to thirty dollars for each day of attendance upon the court for

expenses of travel incident to jury service and other necessary

and reasonable costs as the court may direct." In criminal cases

resulting in a conviction, the clerk is directed to "make up a

statement of all the expenses incident to the prosecution, . . .

and execution for the amount of such expenses shall be issued and

proceeded with." Code § 19.2-336. Where a defendant has waived

a trial by jury at least ten days before trial, but the

Commonwealth or the court refuses to waive a jury, the expenses

incident to the prosecution shall not include the cost of the

jury. See id.

"If [a] provision ha[s] no other purpose or effect than to

chill the assertion of constitutional rights by penalizing those

who choose to exercise them, then it . . . [is] patently

unconstitutional." United States v. Jackson, 390 U.S. 570, 581

(1968). However, "not every burden on the exercise of a

constitutional right, and not every pressure or encouragement to

waive such a right, is invalid." Doss v. Commonwealth, 23 Va.
1
We assume without deciding that appellant has standing to
raise this issue. But see Wicks v. City of Charlottesville, 215
Va. 274, 277-78, 208 S.E.2d 752, 755 (1974) (where defendant
would reap no personal benefit from a ruling that a portion of an
ordinance was unconstitutional, he has no standing to challenge
the statute's validity as to others); Bouldin v. Commonwealth, 4
Va. App. 166, 169-70, 355 S.E.2d 352, 354 (1987).

4
App. 679, 688, 479 S.E.2d 92, 97 (1996) (quoting Corbitt v. New

Jersey, 439 U.S. 212, 218 (1978)). For example, "there is no per

se rule against encouraging guilty pleas." Corbitt, 239 U.S. at

218-19. A legislature, however, cannot needlessly encourage

waivers. See Jackson, 390 U.S. at 582. "Whatever might be said

of [the General Assembly's] objectives, they cannot be pursued by

means that needlessly chill the exercise of basic constitutional

rights. The question is not whether the chilling effect is

'incidental' rather than intentional; the question is whether

that effect is unnecessary and therefore excessive." Id.

(citations omitted).

In Wicks v. City of Charlottesville, 215 Va. 274, 208 S.E.2d

752 (1974), the Supreme Court of Virginia described the purpose

of the imposition of costs as follows:
"[T]he character of the obligation . . . of a
person convicted of [a] crime to the
Commonwealth for the costs incident to his
prosecution and conviction was discussed and
defined to be an exaction, 'simply for the
purpose of reimbursing to the public treasury
the precise amount which the conduct of the
defendant has rendered it necessary should be
expended for the vindication of the public
justice of the State and its violated laws.
It is money paid, laid out and expended for
the purpose of repairing the consequences of
the defendant's wrong.'"

Wicks, 215 Va. at 278-79, 208 S.E.2d at 756 (quoting Commonwealth

v. McCue's Ex'rs, 109 Va. 302, 304, 63 S.E. 1066, 1067 (1909)).

"'Payment of costs is no part of the sentence of the court, and

constitutes no part of the penalty or punishment prescribed for

5
the offense.'" Williams v. Commonwealth, 5 Va. App. 514, 521,

365 S.E.2d 340, 344 (1988) (citation omitted).

Had Ohree elected a jury trial and been convicted,

permitting the Commonwealth to seek reimbursement for the expense

of that jury trial would be a legitimate objective. See Rinaldi

v. Yeager, 384 U.S. 305, 309 (1966) ("We may assume that [the]

legislature could validly provide for replenishing . . . [the

Commonwealth's] treasury from the pockets of those who have

directly benefitted from [the Commonwealth's] expenditures.").

Moreover, the objective of the Commonwealth — to reimburse the

Commonwealth for its costs in providing a jury to a convicted

defendant — cannot "be achieved without penalizing those

defendants who . . . demand [a] jury trial." Jackson, 390 U.S.

at 582.

We conclude that the imposition of the cost of providing a

jury does not impose an excessive or unnecessary burden upon the

exercise of the right of a jury trial under the United States

Constitution. See Wicks, 215 Va. at 280, 208 S.E.2d at 757.

Moreover, the Supreme Court of Virginia has held that a criminal

defendant's constitutional rights are not violated by including

in the expenses incident to the prosecution the cost of the jury

if the defendant exercises his or her right to a jury trial. See

Kincaid v. Commonwealth, 200 Va. 341, 344, 105 S.E.2d 846, 848

(1958). 2 Accordingly, we find no error in the trial court's
2
Despite Ohree's assertion that the Kincaid decision was
improperly founded upon Anglea v. Commonwealth, 51 Va. (10

6
refusal to find that the jury fee was an unconstitutional burden

upon Ohree's right to a jury trial.

II.

Ohree argues on appeal that it "violates the equal

protection clause and is constitutionally impermissible" to

assess court-related costs against an indigent criminal defendant

until the defendant's financial situation improves and he or she

is able to make payment. Ohree's post-sentencing motion and

objection to the $409 in costs contained no allegation of a

constitutional violation. Rather, Ohree's motion asserted her

inability to pay, challenged the costs as not directly related to

the costs of her prosecution, and argued that the costs

constituted a punishment in excess of that permitted by statute.

Ohree did not argue in the trial court that the recoupment

procedures permitted by Virginia statutes violated her

constitutional rights. In fact, the record does not reflect that

the trial judge made any ruling at all upon Ohree's objection to

the assessed costs and the motion to set them aside.
"No ruling of the trial court . . . will be considered as a

basis for reversal unless the objection was stated together with

the grounds therefor at the time of the ruling, except for good

cause shown or to enable the Court of Appeals to attain the ends

of justice." Rule 5A:18.

Gratt.) 696, 701 (1853), this Court is without authority to
overrule precedent of the Supreme Court. See Minor v.
Commonwealth, 16 Va. App. 803, 805, 433 S.E.2d 39, 40 (1993).

7
 The main purpose of requiring timely specific
objections is to afford the trial court an
opportunity to rule intelligently on the
issues presented, thus avoiding unnecessary
appeals and reversals. In addition, a
specific, contemporaneous objection gives the
opposing party the opportunity to meet the
objection at that stage of the proceeding.

Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991)

(citation omitted).

The Court of Appeals will not consider an argument on appeal

which was not presented to the trial court. See Jacques v.
Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991)

(citing Rule 5A:18). Rule 5A:18 applies to bar even

constitutional claims. See Deal v. Commonwealth, 15 Va. App.

157, 161, 421 S.E.2d 897, 900 (1992). Therefore, Ohree's

argument on appeal is barred by Rule 5A:18 because it was not

raised in the trial court. Furthermore, because the trial court

never ruled upon Ohree's objection to the imposition of costs and

her motion to set the costs aside, there is no ruling for us to

review on appeal. See Fisher v. Commonwealth, 16 Va. App. 447,

454, 431 S.E.2d 886, 890 (1993).

Even on the merits, however, Ohree's claim fails. If

Virginia's statutory framework regarding the imposition of costs

is subject to a constitutional construction "[t]he court is under

a duty to give it that construction." Perkins v.Commonwealth, 12

Va. App. 7, 14, 402 S.E.2d 229, 233 (1991) (citation omitted).

In Fuller v. Oregon, 417 U.S. 40 (1974), the Supreme Court of the

United States upheld the validity of an Oregon statute permitting

8
the recoupment of a court-appointed attorney fee where a

convicted defendant subsequently acquired the financial ability

to pay. The Court noted that unlike invalid statutes which
"had no other purpose or effect than to chill
the assertion of constitutional rights by
penalizing those who choose to exercise
them," Oregon's recoupment statute merely
provides that a convicted person who later
becomes able to pay for his counsel may be
required to do so. Oregon's legislation is
tailored to impose an obligation only upon
those with a foreseeable ability to meet it,
and to enforce that obligation only against
those who actually become able to meet it
without hardship.

Id. at 54 (citation omitted).

In Alexander v. Johnson, 742 F.2d 117, 124 (4th

Cir. 1984), the United States Court of

Appeals for the Fourth Circuit set forth the

"basic features of a constitutionally

acceptable fees reimbursement

program . . . ." Under a valid recoupment

program, the entity deciding whether to

require repayment must take recognizance of

the individual's resources, the other demands

on his own and family's finances, and the

hardships he or his family will endure if

repayment is required. The purpose of this

inquiry is to assure repayment is not

required as long as he remains indigent.
Id. (interpreting North Carolina law).

9
 In every criminal case in Virginia, the clerk of the circuit

court in which the accused is found guilty shall, as soon as

possible, make up a statement of all the expenses incident to the

prosecution provided for by statute and executions for the amount

of such expenses shall be issued and proceeded with. On the day

of completing the statement, the effect is the same as a judgment

in the court in favor of the Commonwealth against the accused.

See Code § 19.2-336.
Code § 19.2-354 grants to the trial court the authority to

order payment of costs in installments or upon other terms and

conditions, such as community service. If the defendant is

"unable" to make immediate payment of the costs, the court shall

order him or her to pay them in deferred payments or

installments. See Code § 19.2-354(A).

In determining whether the defendant is "unable" to make

immediate payment and whether an installment plan should be

crafted under Code § 19.2-354(A), the judge "may require such

defendant to file a petition, under oath, with the court, upon a

form provided by the court, setting forth the financial condition

of the defendant." Code § 19.2-355(A). As a part of this

petition, the defendant shall provide a proposed plan for the

repayment of costs in installments or upon other conditions. See

Code § 19.2-355(B).

Should the defendant later default in his or her obligation

to make installment or deferred payment of costs, the judge,

10
either upon his or her own motion or upon the motion of the

prosecuting attorney, may require the defendant "to show cause

why he should not be confined in jail or fined for nonpayment."

Code § 19.2-358(A). The defendant is given the opportunity to

demonstrate that the default was "not attributable to an

intentional refusal to obey the sentence of the court, or not

attributable to a failure on his part to make a good faith effort

to obtain the necessary funds for payment." Code § 19.2-358(B).

If it appears that such reasons exist to explain the default,

"the court may enter an order allowing the defendant additional

time for payment, reducing the amount due or of each installment,

or remitting the unpaid portion in whole or in part." Code

§ 19.2-358(C).
Although the trial court has jurisdiction to modify, vacate,

or suspend its order of final judgment for only twenty-one days

thereafter, see Rule 1:1, it retains the continuing authority to

consider matters pertaining to a defendant's payment of costs.
See Code §§ 19.2-354 and 19.2-358. Sections 19.2-354 and

19.2-358 contain no time limitation beyond which the trial court

may not approve or enforce an agreement regarding payment of

costs. The trial court possesses the implicit authority to

reconsider and modify, upon its own motion or the motion of one

of the parties involved, its order concerning the installment or

deferred payment of costs. Cf. West v. Commonwealth, 16 Va. App.

679, 685-86, 432 S.E.2d 730, 734 (1993) (where the Commonwealth

11
both noted an interlocutory appeal of a ruling on a motion to

suppress and asked the trial court to reconsider its decision,

the trial court retained jurisdiction to reconsider its decision

even in the absence of express statutory authority permitting the

Commonwealth to ask for a reconsideration). Therefore, a

defendant who finds that his or her financial condition has

prevented or will prevent him or her from complying with a

deferral or installment plan ordered under Code § 19.2-354 may

petition the trial court for a modification of its prior order

embodying that plan. Evidence relevant in the consideration of

such a petition would include facts regarding the defendant's

financial position and his or her ability to pay.
Consequently, a person convicted of a crime in the

Commonwealth has ample opportunity to demonstrate that he or she

should be relieved of the obligation to pay court related costs

previously assessed. The defendant can establish that he or she

is "unable" to pay the costs within ten days of sentencing and

obtain a court approved plan to make deferred or installment

payments of the costs pursuant to Code § 19.2-354. If that plan

proves unworkable, the defendant may petition the trial court for

a modification of the plan. Finally, if the defendant defaults

in payment and is ordered to show cause pursuant to Code

§ 19.2-358, he or she has the opportunity to present evidence

concerning his or her ability to pay and obtain either temporary

or permanent relief from the obligation to pay costs. Thus,

12
Virginia's statutory scheme works to enforce the duty of paying

costs "only against those who actually become able to meet [the

responsibility] without hardship." Fuller, 417 U.S. at 54.

The statutory grant of power to the trial court to order

payment of fines, forfeitures, penalties, restitution and costs

in deferred payments or installments according to the defendant's

ability to pay implies that the trial judge will act with sound

judicial discretion. See Dowell v. Commonwealth, 6 Va. App. 225,

228, 367 S.E.2d 742, 744 (1988). Imposing sanctions on a

defendant who fails to pay costs "not attributable to an

intentional refusal to obey the sentence of the court" or who is

financially unable "to obtain the necessary funds for payment"

would be unconstitutional under Fuller. Consequently, imposition

of any penalty on a defendant by a trial court under these

conditions would constitute an abuse of discretion.

The Virginia Supreme Court has addressed recoupment of

attorney fees from an indigent defendant. The same principles

apply to other costs of prosecution.
It is entirely proper, and a
constitutional requisite, that an indigent
defendant be represented by court-appointed
counsel. However, we can perceive no valid
reason why, if the defendant is convicted,
the cost of such representation should not be
taxed as a part of the cost of the
prosecution, treated as any other debt and
collected of the convicted defendant at a
later date if and when he becomes able to
pay. The Code of Virginia abounds with
statutes providing debtors, judgment and
otherwise, with exemptions from execution,
attachment, garnishment and distress. These
statutes afford equal treatment and are

13
 adequate to protect any debtor from hardship,
and from oppression or overreaching by a
creditor. They are not discriminatory and do
not penalize any judgment debtor of the
Commonwealth.

Wicks, 215 Va. at 279, 208 S.E.2d at 756-57 (citations omitted).

Under the Virginia recoupment statutes, the defendant is

given the opportunity at any time to demonstrate that any default

was not attributable to any refusal to make a good faith effort

to obtain the funds necessary for payment. The trial court may

allow the defendant additional time for payment, reduce the

amount of the payments on each installment, or remit the unpaid

portion in whole or in part. Thus, we find the recoupment

statutes constitutional and not a violation of the due process or

equal protection clauses of the United States Constitution.
In any event, although Ohree asserted in the trial court

that she was indigent and counsel was appointed to represent her,

the record contains no affirmative proof that she was unable to

pay the costs, in whole or in part, at the time she was

sentenced. The trial court stayed the requirement of the payment

of costs pending Ohree's appeal. Accordingly, the record does

not reflect that Ohree was determined "unable" to pay the costs

pursuant to Code § 19.2-354, that an installment plan or other

program was created for her to repay the debt, or that she sought

relief from or defaulted upon such a plan. With the case in this

posture, we cannot determine how the statutory scheme for

recoupment of court-related costs might eventually affect Ohree,

14
much less find the procedure unconstitutional as applied to her.

III.

Although prior to arraignment Ohree requested that the jury

fee be waived and contended that the imposition of the jury fee

"chilled" her decision regarding whether to request a jury, she

never contended in the trial court, as she does on appeal, that

her decision to waive a trial by jury was involuntary.

Therefore, this issue was waived. See Rule 5A:18.
Moreover, "[t]he record must indicate that the accused made

a knowing, intelligent and voluntary waiver of the right to trial

by jury." Wright v. Commonwealth, 4 Va. App. 303, 306, 357

S.E.2d 547, 549 (1987). When asked if she wanted to be tried by

the judge or a jury, Ohree consented specifically to a bench

trial. As noted above, had Ohree chosen to be tried by a jury,

the imposition of the cost of a jury would have been lawful.

Ohree's understanding of the cost of a jury trial and her desire

to avoid this expense did not constitute coercion rendering her

waiver of a jury involuntary. Cf. Fuller, 417 U.S. at 53 ("The

fact that an indigent who accepts state-appointed legal

representation knows that he might someday be required to repay

the costs of these services in no way affects his eligibility to

obtain counsel."). Accordingly, the record reflects a knowing

and voluntary waiver of Ohree's right to a jury trial.

IV.

Finally, Ohree argues that requiring her to pay a clerk's

15
fee, Commonwealth's attorney fee, recording fee, courthouse

maintenance fee, drug enforcement jurisdiction fee, and a fee for

the Criminal Injuries Compensation Fund violates the equal

protection and due process clauses of the Constitution of

Virginia. 3 As described above, in the trial court Ohree

challenged the imposition of costs solely upon grounds that the

costs amounted to an additional punishment in excess of that

provided by statute. She raised no constitutional claim. On

brief, Ohree concedes that the only issue preserved was whether

the costs were related to the prosecution. Furthermore, the

trial court never ruled upon the objection raised in Ohree's

post-sentencing objection. Thus, this claim, too, is waived.
See Rule 5A:18.

Ohree argues that under Carter v. City of Norfolk, 206 Va.

872, 147 S.E.2d 139 (1966), any cost imposed upon her must be

related to the expenses incurred by the Commonwealth in

prosecuting her. Ohree misconstrues Carter. Addressing Carter's

reliance upon decisions from other states that required costs to

be related to the prosecution of the particular defendant

charged, see id. at 877, 147 S.E.2d at 143, the Supreme Court
stated:
We need not decide whether the Constitution
of Virginia would require the same result as
3
These fees are authorized by Virginia statutes. See Code
§ 14.1-112 (clerk's fee), § 14.1-121 (Commonwealth's attorney
fee), § 14.1-133.2 (courthouse maintenance fee), § 14.1-134.1
(drug enforcement jurisdiction fee), § 19.2-165 (recording fee),
and § 19.2-368.18 (Criminal Injuries Compensation Fund).

16
 was reached in [cases decided under the
constitutions of other states] . . . if the
statutes there involved were before us; nor
should this opinion be interpreted as
indicating approval or disapproval of the
result reached in those cases.

Id. at 879 n.10, 149 S.E.2d at 144 n.10. The Court declined to

rule on that issue because it found that the cost Carter

disputed, a charge for the cost of reporting the conviction to

the Division of Motor Vehicles, was related to Carter's

conviction. See id. at 879, 149 S.E.2d at 144.
In any event, however, several of the fees challenged by

Ohree were directly related to her conviction. Ohree complains

of six fees: a Commonwealth's attorney fee, a clerk's fee, a

recording fee, a courthouse maintenance fee, a Criminal Injuries

Compensation Fund fee, and a drug enforcement jurisdiction fee. 4

When ruling on the "relatedness" of the fees charged in Carter,

the Supreme Court noted that the court clerk was required to send

Carter's conviction record to the Division of Motor Vehicles and

that the Commissioner of the Division of Motor Vehicles was

required to maintain the records once received. See Carter, 206

Va. at 877-78, 149 S.E.2d at 143. The Court concluded that

4
Code § 14.1-134.1, which authorizes the drug enforcement
jurisdiction fee, explicitly restricts application of that
section to defendants convicted of drug-related offenses. See
id. Because no evidence in the record proved that the
Commonwealth assessed a drug enforcement jurisdiction fee in this
welfare fraud case, we will not assume that the Commonwealth
misapplied Code § 14.1-134.1 by charging Ohree for an expense
under that section. Therefore, we will not address her claim
regarding the drug enforcement jurisdiction fee.

17
"[t]he record-keeping and reporting expenses of the Division of

Motor Vehicles [we]re, therefore, directly related to convictions

for traffic offenses." Id. at 878, 149 S.E.2d at 144.

Similarly, we find that the prosecuting expenses of the

Commonwealth, i.e., the Commonwealth's attorney's fee, the

clerk's fee, and the recording fee, were directly related to

Ohree's conviction. Because Ohree was directly affected by the

services provided by the Commonwealth's attorney, the court

clerk, and the court reporter who recorded the proceedings, these

expenses were related to Ohree's prosecution.
Ohree argues that the Commonwealth cannot assess a fee for

services mandated by the Constitution, such as a Commonwealth's

attorney fee, the clerk's fee, and the recording fee. In Carter,

the Supreme Court dismissed the argument "that costs cannot

include items falling within the category of general expenses of

the administration of justice," id. at 876 n.3, 149 S.E.2d at 142

n.3, finding no Virginia authority to support that position. See
id. at 876, 149 S.E.2d at 142. The Court noted "that the

Constitution of Virginia does not prohibit the assessment of jury

costs against a convicted defendant." Id. at 876 n.3, 149 S.E.2d

at 142 n.3 (citing Kincaid, 200 Va. at 344, 105 S.E.2d at 848).

The Court rejected Carter's claim that the Commonwealth was

without authority to assess fees for the Commonwealth's attorney

and the clerk. See id. at 879, 149 S.E.2d at 144. We are bound

by the prior ruling of the Virginia Supreme Court.

18
 In attacking the fee for the Criminal Injuries Compensation

Fund (the Fund), Ohree argues that because the trial judge

ordered her to pay restitution, no other compensation was due to

the Commonwealth. We disagree. The Fund was created to provide

"aid, care and support" to "innocent persons [who] suffer

personal physical injury or death as a result of criminal acts."

Code § 19.2-368.1. Although Ohree was convicted of no crime

committed against an individual, the Commonwealth and its

citizens were injured by her commission of two counts of welfare

fraud.
Likewise, the General Assembly's purpose in charging a fee

for courthouse maintenance was presumably to seek reimbursement

for Ohree's use of the courthouse. An individual convicted of a

crime against the Commonwealth can be said to have caused the

Commonwealth to incur the expense of the prosecution of that

individual. Therefore, the imposition of the courthouse

maintenance fee upon Ohree, who was convicted of a crime,

furthered the legislature's goal of reimbursement, and the fee

was validly applied to Ohree.

For the foregoing reasons, we affirm appellant's

convictions.

Affirmed.

19
Benton, J., concurring and dissenting.

Because I believe the statutes relating to jury costs and

attorney fees fail to require consideration of an indigent's

ability to pay, thus violating the equal protection clause of the

Fourteenth Amendment, I dissent from Part II of the opinion. I

also disagree with the majority's assertion in Part III that

Ohree failed to argue in the trial court that her consent to a

jury trial was involuntary. For these reasons, I would reverse

Ohree's convictions and remand the case to the trial judge for

further proceedings.
Although I concur in Part I of the opinion, I believe it is

important to note that Ohree's first contention is not based upon

her indigency. She initially contends that the statute which

imposes the costs of providing a jury trial upon every convicted

defendant unconstitutionally burdens a defendant's right to a

jury trial as provided in the United States Constitution.

Although I disagree with the Commonwealth's contention that Ohree

lacks standing to raise this issue and I would hold that she

does, I otherwise concur in Part I of the majority opinion.

A.

I disagree with the majority's holding that Ohree waived her

argument that assessing court-related costs against an indigent

criminal defendant violates the equal protection clause. After

her indictment, Ohree was found to be indigent. Ohree's

court-appointed counsel filed a pretrial motion seeking a waiver

20
of the fees for a jury and court-appointed attorney. The trial

judge issued an opinion letter in which he denied the motion. At

a later hearing, on June 13, Ohree's counsel stated, "I filed a

motion asking the Court to waive Court appointed fees and to

waive jury fees, because she is an indigent person. We question

the constitutionality of requiring a defendant once convicted to

pay those costs." (Emphasis added). Ohree's counsel filed an

objection to the trial judge's ruling that denied the motion to

waive jury and counsel fees. At the June 22 hearing, Ohree's

counsel again argued that the imposition of jury and counsel fees

was unconstitutional. The trial judge noted that he had already

overruled the objection.
The majority correctly notes that Ohree's post-sentencing

motion and objection to the assessed costs did not allege a

constitutional violation and that the trial judge did not rule on

this motion. However, Ohree made several pretrial motions

objecting to the assessment of jury costs based on constitutional

grounds and each was overruled by the trial judge. The trial

judge had adequate notice of Ohree's constitutional objection to

application of the statute to her because she was indigent.

Therefore, I would hold that Ohree did not waive her

constitutional arguments and that we are not barred by Rule 5A:18

from considering the issue on appeal.

B.

I would also hold that Virginia's statutory scheme for the

21
imposition of the costs of providing a jury and court-appointed

attorney violates the Fourteenth Amendment because it fails to

give adequate consideration to the defendant's ability to pay and

expressly authorizes the imposition of the obligation to repay

upon certain indigent defendants.

While the Oregon statute at issue in Fuller v. Oregon stated

that "'[t]he court may require a convicted defendant to pay

costs,'" 417 U.S. 40, 43 n.5 (1974) (citation omitted), the

statute imposed the following limitation:
"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."

Id. (citation omitted).

In construing the statute, the Supreme Court emphasized that

"the requirement of repayment 'is never mandatory.'" Id. at 44

(citation omitted). The Court noted that "before a person may be

required to repay the costs of his legal defense," the judge must

consider the defendant's financial resources and the burden the

obligation will impose upon the defendant. Id. at 45. A judge

cannot order the defendant to pay the costs unless the defendant

"'is or will be able to pay them.'" Id. (citation omitted).

Thus, the Court concluded that under the Oregon statute,

"[d]efendants with no likelihood of having the means to repay are

not put under even a conditional obligation to do so." Id. at

22
46. Finally, the Court emphasized that a person who is initially

ordered to pay the costs can petition the judge for remission of

the costs. See id. at 45. The judge may forgive the obligation

if "payment 'will impose manifest hardship on the defendant or

[the defendant's] immediate family.'" Id. at 45-46 (citation

omitted).

The Fourth Circuit applied Fuller in interpreting a North

Carolina statutory recoupment scheme. See Alexander v. Johnson,

742 F.2d 117 (4th Cir. 1984). In Alexander, the Court upheld the
statute because it required the trial judge to consider the

convicted defendant's resources when deciding whether to require

repayment. See id. at 124-26; see also Olson v. James, 603 F.2d

150, 155 (10th Cir. 1979) (stating that the Kansas statute was

inadequate in part due to "its lack of proceedings which would

determine the financial condition of the accused and perhaps test

the excessiveness of the attorney's fee"); cf. United States v.

Glover, 588 F.2d 876, 878-79 (2d Cir. 1978) (holding that because

the trial court has discretion to determine whether to impose

costs and because "the defendant's ability to pay will . . . be a

paramount factor . . . , [the statute] does not impinge upon the

right to stand trial"). But see United States v. Chavez, 627

F.2d 953, 957-58 (9th Cir. 1980) (holding that a statute

requiring imposition of costs even upon indigents was

constitutionally valid).

Virginia's statutory scheme, however, fails to meet the

23
requirements of Fuller as explicated in Alexander. First, in

Virginia, trial judges are required to impose an obligation to

repay costs on every convicted defendant. Under Code § 19.2-336,

the clerk of court is required to issue a statement of expenses.

The statute further states that "execution for the amount of

such expenses shall be issued and proceeded with." Id. (emphasis

added). Thus, when the trial judge initially imposes the

repayment requirement, the judge must do so without regard to the

defendant's financial resources.
Even under Code §§ 19.2-354 and 19.2-355, which allow the

trial judge to consider the defendant's resources when deciding

whether to require immediate payment, the defendant must

ultimately be required to pay. Under those provisions, a

defendant's indigence would only allow the defendant additional

time to fulfill the obligation. In addition, the trial judge

"shall forthwith suspend the person's privilege to drive a motor

vehicle." Code § 46.2-395. Thus, unlike the statutes in Fuller

and Alexander, the Virginia scheme automatically and mandatorily
imposes on every convicted, indigent defendant the obligation to

repay the expenses of prosecution, including the costs of

providing a jury and a court-appointed attorney.

The majority asserts that the Virginia statutes are

constitutional because under the recoupment statutes, the trial

judge may allow the defendant additional time for payment, reduce

the amount of payment, or remit the unpaid portion in whole or in

24
part. However, unlike the statute in Fuller, the Virginia

statutes do not allow a person who is initially ordered to pay

costs to petition for remission of the costs. Nor do the

statutes allow the judge to forgive the obligation in its

entirety if it would impose "manifest hardship upon the

defendant."

The only statute that allows the trial judge to remit the

unpaid portion of the amount due is Code § 19.2-358. Under this

statute, the trial judge may initiate a show cause proceeding to

determine whether to enforce the defendant's obligation. The

inquiry the judge must make does not specifically mandate

consideration of the defendant's ability to pay. Thus, Code

§ 19.2-358 is inadequate under Fuller because it does not suggest
to the judge that a factor to consider is the defendant's ability

to pay. Because the statute provides standards to apply, the

exclusion of any suggestion that the judge consider the

defendant's resources is even more damaging.

This initial defect is further exacerbated because the

statute essentially imposes an obligation on the defendant to

show that the defendant made an effort to obtain the funds.

Indeed, if the defendant fails to do so, the trial judge "may"

order the defendant confined. See Code § 19.2-358. Although the

decision to jail the defendant is discretionary, the trial judge

is barred from ordering the defendant imprisoned only if the

defendant can show that the defendant did not intentionally

25
refuse to pay and that the defendant made a good faith effort to

obtain the funds. See id.

By requiring the defendant to show that he or she made a

good faith effort to obtain funds to pay the costs, Code

§ 19.2-358 expressly authorizes trial judges to enforce the

obligation to pay against some indigent defendants. That is, an

indigent defendant who cannot prove a satisfactory effort to

obtain the funds can be jailed under Code § 19.2-358. Thus, a

defendant's indigence is not enough, alone, to excuse him from
5
the obligation to repay.
The majority's reliance on Wicks v. City of Charlottesville,

215 Va. 274, 208 S.E.2d 752 (1974), is misplaced. The applicable

recoupment provision in effect at that time provided, in

pertinent part, as follows:
If the defendant is convicted, the amount
5
Although the enforcement provisions contained in the scheme
upheld in Fuller are similar in some respects, the important
distinction is that, in Fuller, the contempt tests were applied
only to defendants who initially were found able to pay. See 417
U.S. at 43 n.5. Thus, the non-indigent Fuller defendant was
required to show that, even though the defendant initially had
the financial ability to make the payment, the defendant's
failure to pay was not caused by the defendant's failure to make
a good faith effort to make the payment. See id. In Virginia,
an indigent defendant is not similarly exempt and may be required
to prove a good faith effort to obtain the funds. Applying the
good faith test to an indigent requires the indigent to obtain
funds the indigent never possessed, an obligation that did not
exist under the statute in Fuller.
Moreover, even if the trial judge finds that a defendant's
"default is excusable," the trial judge may still order the
defendant to pay on modified terms. Code § 19.2-358(C). Thus,
the statute contains no mandatory requirement that an indigent
defendant shall be allowed to forego repayment. Cf. Fuller, 417
U.S. at 45-46.

26
 allowed by the court to the attorney
appointed to defend him shall be taxed
against the defendant as part of the costs of
prosecution . . . . An abstract of such
costs shall be docketed in the judgment
docket and execution lien book maintained by
such court.

Code § 18.4-184.1 (1973). The obligation imposed on the

defendant was in the nature of a civil judgment, enforceable

through execution. See Wicks, 215 Va. at 279, 208 S.E.2d at

756-57; Code § 18.4-184.1 (1973); State v. Albert, 899 P.2d 103,

110-11 (Alaska 1995) (discussing the statute in Wicks and stating
that "[t]he amount so taxed was docketed as a judgment"). Unlike

the statute discussed in Wicks, the current recoupment scheme

does not treat indigent defendants just like other judgment

debtors. Code § 19.2-336, and the sections of Chapter 21 to

which it refers, provide for contempt proceedings that may result

in imprisonment of the defendant, revocation of the suspension of

the defendant's sentence, and suspension of the defendant's

driver's license. Therefore, the holding in Wicks does not apply

to the current recoupment scheme. See Albert, 899 P.2d at 109-11

(emphasizing the distinction between a system that merely "treats

recoupment judgment debtors like other civil judgment debtors"

and those that "give rise to contempt proceedings" or operate as

a condition of probation).

Therefore, I would hold that Virginia's statutory scheme

unconstitutionally imposes the costs of a jury trial and

court-appointed attorney upon indigent defendants, without any

27
preliminary consideration of their ability to pay, in violation

of the Fourteenth Amendment of the United States Constitution.

C.

I would also hold that Ohree preserved for appeal the issue

whether she voluntarily waived a jury trial. Prior to trial,

Ohree filed a motion for waiver of jury fees and court-appointed

attorney fees. In the motion, she argued "[t]hat to require the

defendant to pay a fee for a jury or counsel, in the event she is

convicted, has a coercive effect on the exercising of her right

to trial by jury." After the trial judge denied her motion,

Ohree objected to that ruling, stating that her reasons for the

objection included "the chilling effect on her decision to

exercise the right to jury." In the June 13 hearing, defense

counsel stated that Ohree originally was going to ask for a jury

trial in this case but because of the judge's ruling on the issue

of waiver of the jury fee, "[s]he can't afford a jury. . . .

Lack of money is the problem." At the June 22 hearing, defense

counsel reiterated that "the requirement of a defendant to pay

for a jury upon conviction . . . has a chilling effect and as

such any waiver of jury would not be valid." The trial judge

noted that he had already overruled these objections.
At the beginning of Ohree's trial, defense counsel again

objected to the assessment of fees for a jury and a

court-appointed attorney. After the trial judge overruled the

objection, Ohree pleaded not guilty to both charges. When the

28
judge asked Ohree whether she "wish[ed] to be tried by the Court

or by a jury," defense counsel interjected, "If I might, Your

Honor, we've already made an objection to that. We're agreeing

to be tried by the Court."

The trial judge had adequate notice of Ohree's position that

the trial judge's denial of waiver of jury fees had a "chilling"

and "coercive" effect on her decision to waive trial by jury.

Therefore, I would hold that Ohree did not waive her argument

that she involuntarily waived her right to a jury trial, and we

are not barred by Rule 5A:18 from considering the issue on

appeal.
D.

"Waivers of constitutional rights . . . must be voluntary

[,] knowing, [and] intelligent acts done with sufficient

awareness of the relevant circumstances and likely consequences."

Brady v. United States, 397 U.S. 742, 748 (1970). On brief,

Ohree concedes that her waiver was knowing and intelligent.

However, she argues that the waiver of a jury trial was not

voluntary or "free from coercion." She also relies upon the

principle that "the record must indicate that the accused made a

knowing, intelligent and voluntary waiver of the right to trial

by jury." Wright v. Commonwealth, 4 Va. App. 303, 306, 357

S.E.2d 547, 549 (1987).

The record shows that, initially, Ohree had planned to

request a jury trial. However, once the trial judge overruled

29
defense counsel's motions to waive the assessment of fees based

on Ohree's indigence, Ohree agreed to a bench trial. Ohree notes

in her brief that her decision was "compelled by poverty."

Clearly, the record establishes that Ohree waived her right to a

jury trial solely because of her inability to pay the costs of a

jury if she was found guilty. If the trial judge had ruled in

Ohree's favor on her motions to waive jury fees, she would not

have waived her right to a jury trial. Because we must review

Ohree's waiver of her constitutional right to a jury trial with a

presumption against such waiver, see Johnson v. Zerbst, 304 U.S.

458, 463 (1938); Sisk v. Commonwealth, 3 Va. App. 459, 462, 350

S.E.2d 676, 678 (1986), I would hold that the evidence did not

overcome this presumption and was insufficient to show that she

voluntarily waived her right to a jury trial.

E.

The majority suggests in dicta that the various statutes may

be rendered constitutional by reading into them a prohibition

against a trial judge imposing sanctions if an indigent defendant

is still indigent when the trial is concluded and the costs

remain unpaid. However, no such prohibition existed when the

trial judge denied Ohree's motion. Ohree was required to elect

whether to seek a jury trial after she had been informed that if

she was convicted she would be required to pay the cost of the

jury. Thus, this is not a case where the "statute is carefully

designed to insure that only those who actually become capable of

30
repaying the State will ever be obliged to do so." Fuller, 417

U.S. at 53 (footnote omitted). Ohree's decision was made in the

context of knowing that she would be required to pay substantial

costs if she was convicted. Under those circumstances, her

waiver of a jury was obtained through a species of coercion that

rendered her choice involuntary.

For these reasons, I would reverse Ohree's convictions and

remand to the trial judge for a determination of Ohree's ability

to pay jury and attorney fees. If the judge finds that Ohree is

unable to pay and is not likely to be able to pay in the future,

the judge should grant Ohree's motions because the statutes

authorizing the imposition of those costs are unconstitutional as

applied to defendants who are unable to pay. The trial judge

then must allow Ohree to re-elect trial by judge or jury and hold

a new trial. If the trial judge finds that Ohree is able to pay,

Ohree's motions should be denied but she should be permitted to

re-elect trial by judge or jury after being notified that should

she later be unable to pay the costs, she will not be required to

do so.
I dissent.

31