U.S. v. Ofchinick

• Decision Date: 12 April 1991
• Docket Number: No. 90-3716,90-3716
• Citation: 937 F.2d 892
• Parties: UNITED STATES of America, Appellee, v. Daniel R. OFCHINICK, Sr., Appellant. . Submitted Under Third Circuit Rule 12(6)
• Court: U.S. Court of Appeals — Third Circuit

Page 892

937 F.2d 892

UNITED STATES of America, Appellee, v. Daniel R. OFCHINICK, Sr., Appellant.

No. 90-3716.

United States Court of Appeals, Third Circuit.

Submitted Under Third Circuit Rule 12(6)

April 12, 1991.

July 5, 1991.

Walter A. Koegler, Koegler & Tomlinson, and Harry R. Ruprecht, King, Ruprecht & McQuoid, Pittsburgh, Pa., for appellant.

Thomas W. Corbett, Jr. and Bonnie R. Schlueter, Office of U.S. Atty., Pittsburgh, Pa., for appellee.

Before SLOVITER, Chief Judge, and COWEN and GARTH, Circuit Judges.

OPINION OF THE COURT

GARTH, Circuit Judge:

The proceeding underlying the present appeal was initiated by a petition filed by the probation office having supervision over Daniel R. Ofchinick, Sr. The petition sought a date for a hearing for the court "to determine if the probationer has violated the conditions of his probation." Among other provisions of Ofchinick's sentence, he had been placed on probation subject to a number of terms and conditions, one of which required him to make restitution to his victims.

This court had previously affirmed the district court's order that set the total amount of Ofchinick's restitution obligation, relating to his conviction for mail and securities fraud and RICO violations, at a total of $3,988,629.54. United States v. Ofchinick, 883 F.2d 1172, 1175-76, 1184 (3d Cir.1989). Because Ofchinick had paid only a total of $150 toward that restitution obligation, on September 21, 1990 the district court ordered that a probation violation hearing be held on October 5, 1990. ¹ At the hearing, the evidence that was adduced included evidence of Ofchinick's income and expenses. At the conclusion of the hearing, the district court ruled from the bench, ordering Ofchinick to pay $1000 per month in installment payments to discharge his restitution obligation. Appendix at 47. The district court ruled: "I'm ordering him to pay $1,000 a month restitution beginning with the last day of this month, and the last day of every month hereafter until his restitution is paid. If he doesn't pay it he's going back to jail." Appendix at 47.

I.

Ofchinick appealed the district court's oral ruling, arguing that the $1000 per month payment schedule violated his due process rights, because the evidence was insufficient to establish that he had the ability to make such payments. He argues, as well, that his First Amendment rights are violated by such an order as it does not recognize or give him credit for his $600 per month payment to the church of which he is a minister.

Initially we confronted a jurisdictional problem in that the district court, in delivering its oral ruling, had not reduced that ruling to a written order which could be docketed. In the absence of a docketed order, Ofchinick's notice of appeal was premature. We, thereupon, directed the district court to enter a written order resolving its October 5, 1990 hearing so that the clerk of the district court could enter that order in its docket. On May 3, 1991, the district court entered the order which was required if jurisdiction was to vest in this court. ² Ofchinick's earlier filed notice of appeal thereupon ripened, and vested jurisdiction in this court to address Ofchinick's challenges to the district court's disposition of the probation violation hearing. See In re Matter of Grand Jury Empaneled January 21, 1975, 541 F.2d 373, 376-77 (3d Cir.1976).

II.

The government nevertheless contends that although an effective order has now been filed by the district court, an appeal still does not lie because "the order is not ripe for review." Supplemental Brief of the Government, filed April 9, 1991, at 2. The government does not agree that the mere filing of an order setting forth a new probationary condition is sufficient to invoke our jurisdiction. Rather, in supplemental briefing ordered by this court, the government argues that the district court's order "merely implements the [restitution] order previously affirmed by this court," id., and that because Ofchinick has apparently thus far complied with that order and has not been incarcerated for its violation, ³ he does not present an issue that is ripe for appeal. The government argues that:

the order constitutes an administrative step implementing the previous order of restitution, which both the district court and this Court had found Ofchinick able to pay. Although the district court warned that Ofchinick must pay the set amount or go to jail, this is the understood threat that accompanies every probation condition.

....

The order does not become ripe for review unless or until probation is revoked.

Supplemental Brief of the Government, at 5, 7. In effect, the government's position is that until Ofchinick fails to make the ordered $1,000 per month payment, has his probation revoked, and is remanded to prison, he may not appeal the condition of probation imposed by the district court which requires that Ofchinick make payments of $1,000 per month.

III.

We analyze the government's position as one which would have us hold that no appellate jurisdiction can attach until after probation has been revoked. True, nowhere in the government briefs is an argument found which is focused on, or characterized as, "jurisdiction." Instead, the government relies on terms such as "ripeness for appeal" and "finality," which, although related to concepts of jurisdiction, do not refer specifically to jurisdiction. Significantly, the cases to which the government refers do not discuss jurisdictional doctrine and those cases, some of which we address in detail infra, involve both direct appeals from convictions and sentences as well as appeals from probation revocation orders.

No decision cited by the government is directly on point or directly supports the government's argument, or even more importantly discusses when appellate jurisdiction vests to review a defendant's challenge to a probation condition. Moreover, in every case cited to us, the court either reviewed the challenged probation condition on the merits or held that the defendant had waived his or her objection by not raising it at the time the particular condition was imposed. See, e.g., United States v. Furst, 918 F.2d 400, 401, 408-10 (3d Cir.1990) (on Furst's appeal from a judgment of sentence, court held that district court "failed adequately to set forth the basis of its restitution order in conformity with the applicable case law"); United States v. Cannistraro, 871 F.2d 1210, 1214 (3d Cir.1989) (on Cannistraro's appeal from judgment of sentence, including imposition of restitution obligation, court held challenge to order of restitution to be without merit); United States v. Ofchinick, 883 F.2d 1172, 1174, 1176 (3d Cir.1989) (on Ofchinick's appeal from judgment of conviction and sentence, court held that objection to restitution order was without merit); United States v. Sleight, 808 F.2d 1012 (3d Cir.1987) (on Sleight's appeal from order of restitution imposed pursuant to Federal Probation Act, following affirmance of judgment of conviction, court held that restitution order was not unduly harsh). ⁴

Moreover, in United States v. Stine, 646 F.2d 839 (3d Cir.1981), we held that Stine's failure to challenge the validity of a condition of probation at the time the condition was imposed constituted in effect a waiver of that challenge. Stine involved an appeal from the district court's order which revoked Stine's probation for violation of a probation condition. Stine was required, as a condition of his probation, to appear for psychological counseling, and he attacked this condition as being invalid and unconstitutional. Id. at 839.

This court in Stine discussed the use of probation as an alternative to incarceration, and the need for psychological counseling, but did not address the merits of Stine's claim. Rather, we held that Stine had failed to protest the entry of the probationary condition at the time that it was imposed. By failing to do so, Stine had waived his right to object. Id. at 846-47. In so holding, we cited cases which provide that a defendant may contest the constitutionality of a probation condition on direct appeal from the judgment of conviction, and cases that provide that, where a defendant does not attack a probation condition when it is imposed, he or she is foreclosed from a later challenge to that condition. Id. at 846-47 & n. 16. Accordingly, Stine, who had waited until his probation had been revoked, could no longer object to the constitutionality of the probationary condition. Id. at 846-47. See also United States v. Irvin, 820 F.2d 110, 111 (5th Cir.1987) (declining to rule on validity of restitution condition because defendant waived right to challenge it by failing to raise issue at time of sentence, on direct appeal, or pursuant to Fed.R.Crim.P. 35) (citing Stine, 646 F.2d at 844-45).

In reaching its conclusion, the court in Stine distinguished the circumstance involved in Wood v. Georgia, 450 U.S. 261, 101 S.Ct. 1097, 67 L.Ed.2d 220 (1981). Stine, 646 F.2d at 847 n. 18. In Wood, the defendants had been convicted of distributing obscene materials and had been sentenced to periods of probation on condition that they make regular installment payments in satisfaction of their fines. Wood, 450 U.S. at 262-63, 101 S.Ct. at 1098-99. When they failed to make those payments, their probations were revoked. They claimed that revoking their probation discriminated against them on the basis of wealth, in violation of the equal protection clause. Id. at 262, 101 S.Ct. at 1098-99. The Supreme Court did not decide the equal protection issue, did not discuss appellate jurisdiction, and did not deal with the merits of the petitioners' arguments because of the possibility of a conflict of interest in their representation. Id. at 262-63, 101 S.Ct. at 1098-99.

Our court, in Stine, recognized that although the Wood petitioners had not previously challenged their fines, they did so on appeal,...