State v. Barklind

• Citation: 87 Wn.2d 814,557 P.2d 314
• Decision Date: 16 December 1976
• Docket Number: No. 43827,43827
• Parties: STATE of Washington, Respondent, v. David BARKLIND, Petitioner.
• Court: United States State Supreme Court of Washington

Page 814

87 Wn.2d 814

557 P.2d 314

STATE of Washington, Respondent, v. David BARKLIND, Petitioner.

No. 43827.

Supreme Court of Washington, En Banc.

Dec. 16, 1976.

Rehearing Denied Jan. 11, 1977.

David A. Leen, Jim Walsh, Legal Services Center, Seattle, for petitioner.

David F. Thiele, Pros. Atty., Coupeville, for respondent.

BRACHTENBACH, Associate Justice.

Defendant pleaded guilty to a charge of second degree burglary. At the preliminary hearing he was found to be indigent and an attorney was appointed at public expense to represent him. At sentencing the court deferred sentence and granted probation as a condition of which defendant was ordered to pay the county, under terms hereafter described, $150 as reimbursement for a portion of the expense of his court-appointed attorney. Defendant challenges the constitutionality of that portion of the order deferring sentence and granting probation upon the condition that he reimburse the county for costs incurred in providing him with counsel. The Court of Appeals affirmed. State v. Barklind, 12 Wash.App. 818, 532 P.2d 633 (1975). We affirm.

The trial court order provided for payments of $25 per month. The order further provided that

Defendant's duty to make the payments pursuant to item 1 above shall exist only so long as defendant has the present financial ability to pay without causing undue hardship to himself or his dependents. Revocation of this probation for nonpayment shall only occur if defendant-wilfully failed to make a good faith reahaving the financial ability to do so or wilfully failed to make a good faith reasonable effort to acquire means to make the payment. Defendant may petition the court to adjust the amount of any installment payments or the total amount due to fit his changing financial situation.

Defendant contends that this repayment order (1) impermissibly burdens his right to counsel; (2) denies equal protection; (3) may result in imprisonment for debt in violation of our state constitution; and (4) involves involuntary servitude in violation of the thirteenth amendment to the United States Constitution.

We begin with the principle that an indigent criminal defendant is entitled to the assistance of counsel without cost. Further, such defendant cannot be influenced to surrender that constitutional right by the imposition of a penalty on the exercise thereof. State ex rel. Brundage v. Eide, 83 Wash.2d 676, 521 P.2d 706 (1974). It is defendant's contention that Eide supports his position that the repayment order burdens his constitutional right to counsel.

In State ex rel Brundage v. Eide, supra, at the time of appointment of counsel, the defendant was ordered to pay attorney's fees of $35 per hour if, within 6 months thereafter, he found employment enabling him to do so. Obviously that order would given an indigent defendant pause and would chill his exercise of his right to counsel. The effect of the court's order in later imposing liability upon the defendant for the fee would be to issue a 'blank check' to counsel. We correctly held that such an order did not meet constitutional standards.

In the present case, however, no such impediment attached to defendant's right to counsel. The appointment of counsel at public expense to represent defendant was unconditional. It was only when the trial court exercised its discretion of whether to commit the defendant to the penitentiary for not more than 15 years or to grant probation that the repayment issue arose. It is this fact that distinguishes the present situation from that in State ex rel. Brundage v. Eide, supra. The court in Eide was not presented nor did it consider the question of whether the court has inherent power to exercise discretion to consider appropriate factors and fashion conditions of probation which meet constitutional criteria. State v. Hess, 86 Wash.2d 51, 54, 541 P.2d 1222 (1975). We fail to perceive the constitutional deficiency in the system which allows the trial court discretion to grant probation and in effect, as a condition, tell the defendant that he should recognize some obligation to society for the crime which he voluntarily committed.

It is argued that a reimbursement requirement may adversely affect rehabilitation by embittering the probationer who views the requirement as extortion or threatened imprisonment for debt. Kamisar & Choper, The Right to Counsel in Minnesota: Some Field Findings and Legal-Policy Observations, 48 Minn.L.Rev. 1, 26 n. 114 (1963). If that is a fact, and we do not know if it is, it is a behavioral problem which reflects more upon the attitude of the defendant than upon a society against which a crime has been committed and which has guaranteed that defendant free counsel.

The question of the constitutionality of repayment conditions on probation was recently addressed in Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974). Fuller held constitutional an Oregon recoupment statute because it contained several safeguards against oppressive application. In comparing these safe-guards to the trial court's order, we find that the court fashioned its order on every point mentioned in Fuller v. Oregon, supra at 44--47, 94 S.Ct. 2116.

First, the requirement of repayment must not be mandatory. Under the terms of the order this test is met. Second, repayment is only to be imposed upon convicted defendants. In the present case, defendant pleaded guilty to the crime charged. Third, the court may not order a convicted defendant to pay unless he 'is or Will be able to pay.' Such is an express provision of the court's order. Fourth, the court must take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose. This requirement is met. The order provides that the defendant's duty to make payments shall exist only so long as the defendant has the present financial ability to pay without causing undue hardships to himself or his dependents. Fifth, no requirement to repay may be imposed if it appears that there is no likelihood that defendant's indigency will end. While the record is somewhat deficient in this regard, it does contain an affidavit by the defendant that in the summer he is self-employed as a 'plower' at $16 per hour. This is sufficient to indicate a likelihood that his indigency will end during the probation period. Sixth, a convicted person under obligation to repay may petition the court for remission of the payment of costs or of any unpaid portion thereof. The trial court order specifically allows the defendant to petition the court to adjust the amount of any installment or the total amount due to fit his changing financial situation. Finally, no convicted person can be held in contempt for failure to repay if the default was not attributable to an intentional refusal to obey the court or to a failure to make a good faith effort to make the payment. Under the terms of the order, this requirement is squarely complied with.

In the final analysis, we do not find this order to impermissibly burden defendant's constitutional right to counsel. The trial court met all the requirements of the constitution and adhered to the principles set forth in Fuller. The issue is best summarized by Mr. Justice Douglas in his concurring opinion in Fuller, wherein he stated:

Repayment cannot be required until a defendant is able to pay the costs, and probation cannot be revoked for nonpayment unless there is a specific finding that payment would not work hardship on a defendant or his family. Under these circumstances, the 'chill' on the exercise of the right to counsel is no greater than that imposed on a non-indigent defendant without great sums of money.

Fuller v. Oregon, supra at 56, 94 S.Ct. at 2126.

We note that the legislature has enacted a recoupment statute identical to the Oregon statute upheld in Fuller. Laws of 1975, 2d Ex.Sess., ch. 96. At least 29 other jurisdictions have some form of a recoupment statute. See, e.g., Cal.Pen.Code Ann. § 987.8 as amended ch. 1199 (West 1974); Idaho Code Ann. § 19--859 (Supp.1975); Minn.Stat.Ann. § 611.35 (Supp.1976); Nev.Rev.Stat. § 176.091 (1975); N.J.Stat.Ann. tit. 2A §§ 158A--16, 17 (1971); Vermont Stat.Ann. tit. 13, § 5255 (1974); Wis.Stat.Ann. § 256.66 (1971). Defendant concedes that overturning this order would make the new statute unconstitutional. To do so we would have to impose a higher constitutional standard than mandated by the Fuller decision and we decline to do so.

Defendant's contention that the repayment provision violates the equal protection clause is based upon James v. Strange, 407 U.S. 128, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972), which invalidated a Kansas recoupment statute. The Kansas statute, however, was materially different from the statute approved in Fuller and the kind of order we approve in this case. It provided that the total amount expended was due within 60 days after receipt by the defendant of a notice of the amount paid. If not paid, it became an interest-bearing judgment and a lien on real estate. It authorized execution, garnishment and other proceedings in aid thereof. Most importantly it denied the defendant all the exemptions available to other judgment debtors except the homestead exemption. The court found that the elimination of the exemptions normally available to judgment debtors 'embodie(d) elements of punitiveness and discrimination which violate the rights of citizens to equal treatment under the law.' James v. Strange, supra at 142, 92 S.Ct. at 2035.

The trial court's order under consideration here suffers from no such infirmity. In this case there is a much less onerous burden. The court did not create an obligation equivalent to a civil judgment. Its order is tempered entirely toward the circumstances of the defendant. There was not effort to destroy the defendant's possession of minimal resources. Under the order his right to an avoidance to undue...