Ohree v. Com.

• Decision Date: 13 January 1998
• Docket Number: No. 2112-95-2,2112-95-2
• Court: Virginia Court of Appeals
• Parties: Carla Jean OHREE v. COMMONWEALTH of Virginia. Record

Page 484

494 S.E.2d 484

26 Va.App. 299

Carla Jean OHREE v. COMMONWEALTH of Virginia.

Record No. 2112-95-2.

Court of Appeals of Virginia,

Richmond.

Jan. 13, 1998.

David P. Baugh, Richmond, for appellant.

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

Present: BENTON and ELDER, JJ., and COLE, Senior Judge.

COLE, Judge.

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 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 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, 88 S.Ct. 1209, 1216, 20 L.Ed.2d 138 (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. App. 679, 688, 479 S.E.2d 92, 97 (1996) (quoting Corbitt v. New Jersey, 439 U.S. 212, 218, 99 S.Ct. 492, 497, 58 L.Ed.2d 466 (1978)). For example, "there is no per se rule against encouraging guilty pleas." Corbitt, 439 U.S. at 218-19, 99 S.Ct. at 497. A legislature, however, cannot needlessly encourage waivers. See Jackson, 390 U.S. at 582, 88 S.Ct. at 1216. "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 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, 86 S.Ct. 1497, 1500, 16 L.Ed.2d 577 (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, 88 S.Ct. at 1217.

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 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.

The main purpose of requiring timely specific objections is to afford the trial court an opportunity...