State v. Hess

• Decision Date: 06 November 1975
• Docket Number: No. 43726,43726
• Citation: 86 Wn.2d 51,541 P.2d 1222
• Parties: The STATE of Washington, Petitioner, v. Willie HESS, Respondent.
• Court: Washington Supreme Court

Page 51

86 Wn.2d 51

541 P.2d 1222

The STATE of Washington, Petitioner, v. Willie HESS, Respondent.

No. 43726.

Supreme Court of Washington, En Banc.

Nov. 6, 1975.

Rehearing Denied Dec. 30, 1975.

Henry R. Dunn, Pros. Atty., James E. Warme, Deputy Pros. Atty., Kelso, for petitioner.

Judith S. Dubester, Seattle, for respondent.

Willie F. Hess, pro se.

BRACHTENBACH, Associate Justice.

Defendant was convicted of grand larceny by embezzlement from a combination grocery store and gasoline station which he had been managing. He appealed to the Court of Appeals which affirmed the conviction, but set aside a condition of probation requiring payment of attorney's fees incurred in providing him counsel as an indigent. State v. Hess, 12 Wash.App. 787, 532 P.2d 1173 (1975). The defendant petitioned for review on two issues: (1) whether the trial court erred in admitting evidence of uncharged offenses and (2) whether the failure of trial counsel to subpoena a witness constituted a denial of his right to effective counsel. The state petitioned for review on the attorney's fee recoupment issue. We affirm the Court of Appeals as qualified by this opinion.

The first issue is whether the court erred in admitting evidence of losses and shortages in the business managed by defendant at times prior to the date charged in the information. Defendant contends this was prejudicial error because a defendant must be tried only for the offenses charged. State v. Mack, 80 Wash.2d 19, 490 P.2d 1303 (1971). However, there are exceptions to this rule which make evidence of such uncharged offenses relevant. Included in the exceptions is evidence which shows intent or a common scheme or plan. State v. Goebel, 36 Wash.2d 367, 369, 218 P.2d 300 (1950); State v. Mack, supra. The state here had to prove intent and had to overcome a claim that the defendant was entitled to the missing funds as salary and reimbursement for certain advances alleged to have been made for the employer. By the evidence of the beginning and ending inventories, as well as various shortages and losses at different times, the state proved intent and a common scheme or plan. The evidence was admissible.

Defendant argues that even if the evidence fell within the exceptions mentioned, there was error due to the court's failure to give a catuionary instruction regarding the limited purpose for which the evidence was admitted. No such instruction was requested. Thus, there is no error. State v. Noyes, 69 Wash.2d 441, 446, 418 P.2d 471 (1966).

As to the second issue relating to the failure of defendant's court appointed trial counsel to subpoena a witness, we agree with the Court of Appeals which determined that trial counsel's decision not to subpoena the witness was a matter of legitimate trial tactics. State v. Hess, supra, 12 Wash.App. at 790, 532 P.2d 1173.

The third issue is whether probation can be conditioned upon a defendant's reimbursement of attorney fees. Defendant, an indigent, was provided counsel at county expense. As a condition of his probation, defendant was ordered to reimburse the county for court costs, including the cost of paying his attorney. The Court of Appeals held the condition to be constitutionally invalid on the basis that requiring such repayment chills a defendant's exercise of the right to counsel. In so holding, the court relied upon this court's decision in State v. Eide, 83 Wash.2d 676, 521 P.2d 706 (1974).

In State v. Eide, supra, we held it constitutionally impermissible to order the defendant, at the time of appointment of counsel, to pay the attorney's fee if defendant were able, within 6 months of arraignment, to pay without hampering his ability to meet necessary living expenses. We relied, among other authorities, upon In re Allen, 71 Cal.2d 388, 78 Cal.Rptr. 207, 455 P.2d 143 (1969), and upon the reasoning of the dissent in State v. Fuller, 12 Or.App. 152, 504 P.2d 1393 (1973). Subsequent to Eide, the United States Supreme Court upheld the majority of the Oregon Court of Appeals 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. The Oregon law provided (1) that the requirement of repayment could be imposed only upon a convicted defendant, (2) that a convicted person could not be ordered to pay the expenses unless able to do so, (3) that a convicted person under an obligation to repay could at any time petition the court for remission of the payment of costs or any unpaid portion of costs, (4) that the court was empowered to remit if payment would impose manifest hardship upon the defendant or defendant's immediate family, and (5) that no convicted person could 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. The Supreme Court emphasized that the legislation was '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.' 417 U.S. 54, 94 S.Ct. 2125.

Underlying the Fuller decision is a concern that indigent defendants might be discouraged from utilizing court-appointed counsel where repayment for such services could later be required without regard to the defendant' particular circumstances. Similarly, in Eide we were concerned primarily with the absence of standards sufficient to protect the defendant against an arbitrary imposition of costs. That concern remains. We have no statute which sets forth guidelines for requiring the repayment of court-appointed attorney fees, and the condition placed upon defendant's probation in this case cannot stand.

With respect to the Sixth Amendment right to counsel, the Supreme Court in Fuller has determined that an indigent defendant may constitutionally be required to repay the costs of court-appointed counsel if the requirement is imposed in accordance with certain statutory protections. The Court of Appeals in this case, however, indicates that such a requirement would violate our state constitutional provision relating to right of counsel (Const. art. 1, § 22) and cites Eide as support for that view. The issue of whether a statute which authorizes recoupment and which provides those safeguards noted in Fuller was not before this court in Eide and is not before us here. Likewise we are not presented and do not consider the question whether the court has inherent power to exercise discretion to consider appropriate factors and fashion conditions of probation which meet constitutional criteria. That was not done in this case. We note that a California recoupment statute, passed subsequent to Allen, was recently upheld as constitutional in People v. Amor, 12 Cal.3d 20, 114 Cal.Rptr. 765, 523 P.2d 1173 (1974), but we express no opinion on whether such a statute would meet the requirements of our state constitution.

The Court of Appeals is affirmed as qualified herein.

FINLEY, ROSELLINI, HAMILTON, HUNTER and UTTER, JJ., concur.

STAFFORD, Chief Justice (concurring).

I concur with the majority opinion because it has narrowly circumscribed the apparent rejection of recoupment of attorney's fees in State v. Eide, 83 Wash.2d 676, 521 P.2d 706 (1974) to the specific facts at hand. As a result the majority has left for further consideration the question whether, as a term of probation, a defendant may be required to repay the state for fees paid to a court-appointed attorney (1) if a recoupment statute provides the constitutional safeguards noted in Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974); or (2) if, in the absence of legislation, a trial court fashions terms of probation which meet the Fuller criteria.

It is important that the instant case has left this matter open to further consideration. Most courts and legislatures which have dealt with the subject have considered it logical that a probationer who was indigent at the time of trial but who later acquires the ability to pay his court-appointed attorney should do so. Fuller v. Oregon, supra, aff'g, State v. Fuller, 12 Or.App. 152, 160, 504 P.2d 1393 (1973); James v. Strange, 407 U.S. 128, 141, 92 S.Ct. 2027, 32 L.Ed.2d 600 (1972); Rinaldi v. Yeager, 384 U.S. 305, 311, 86 S.Ct. 1497, 16 L.Ed.2d 577 (1966); People v. Amor, 12 Cal.3d 20, 114 Cal.Rptr. 765, 523 P.2d 1173 (1973); In re H, 2 Cal.3d 513, 522, 86 Cal.Rptr. 76, 468 P.2d 204 (1970). It has been deemed necessary only that the required reimbursement conditions do not violate the Sixth Amendment right to counsel. Fuller v. Oregon, supra; People v. Amor, supra. In this...