State v. Johnston

• Decision Date: 05 September 2001
• Citation: 176 Or. App. 418,31 P.3d 1101
• Parties: STATE of Oregon, Respondent, v. Paul McCauley JOHNSTON, Appellant.
• Court: Oregon Court of Appeals

31 P.3d 1101

176 Or. App. 418

STATE of Oregon, Respondent, v. Paul McCauley JOHNSTON, Appellant.

0005496C; A111471.

Court of Appeals of Oregon.

Argued and Submitted April 9, 2001.

Decided September 5, 2001.

Anne Morrison argued the cause for appellant. With her on the brief was Ricker and Roberson.

Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

BREWER, J.

Defendant was convicted of criminal nonsupport, ORS 163.555, and felony failure to appear, ORS 162.205. The trial court sentenced him to probation and ordered that he serve 60 days in the county jail as a condition of probation, with credit for time served. The trial court also ordered, as a special condition of probation, that defendant "[s]hall pay per diem of $39.75 for each day served" in the county jail. Defendant appeals, arguing that the trial court lacked authority to order him to pay the described amount as a special condition of probation. According to defendant, costs for confinement of a person in a local correctional facility may be assessed and recovered only as provided in ORS 169.151. The state responds that the trial court's order was authorized under ORS 137.540(1), relating to general conditions of probation; under ORS 137.540(2), relating to special conditions of probation; or both. We affirm.

The legislature generally has plenary authority to enact laws governing the sentences for criminal offenses, subject to applicable constitutional restrictions. State v. McDonnell, 329 Or. 375, 382, 987 P.2d 486 (1999). Probation is a sentence. State v. Zimmerman, 166 Or.App. 635, 999 P.2d 547 (2000); see also ORS 137.520 to ORS 137.630; OAR-213-005-0006. Conditions of probation must be consistent with the sentencing court's legislatively conferred authority. See State v. Kappelman, 162 Or.App. 170, 986 P.2d 603 (1999)

(conditions of probation imposed by the trial court were not authorized under applicable statutes).

Consistent with those principles, we need not determine whether ORS 169.151 precluded the court's order in this case if, in the first instance, the trial court lacked authority under ORS 137.540 or other applicable statute to order defendant, as a condition of probation, to pay per diem costs of his time served in the county jail. We therefore begin with that question. ORS 137.540 provides, in part:

"(1) The court may sentence the defendant to probation, which shall be subject to the following general conditions unless specifically deleted by the court. The probationer shall:

"(a) Pay supervision fees, fines, restitution or other fees ordered by the court. "* * * * *

"(2) In addition to the general conditions, the court may impose any special conditions of probation that are reasonably related to the crime of conviction or the needs of the defendant for the protection of the public or reformation of the offender, or both, including, but not limited to, [specified conditions not relevant here.]" (Emphasis added.)

Again, the state argues that, notwithstanding ORS 169.151, the sentencing court was authorized to impose per diem jail costs as a "fee" authorized under ORS 137.540(1)(a), providing for general conditions of probation. Alternatively, the state argues that the court was authorized to impose those costs as a special condition of probation under ORS 137.540(2), because the costs were related to defendant's reformation—including remedying his past failures to take personal responsibility for his conduct and his obligations-and, therefore, the protection of the public.¹

We first consider whether jail costs may be imposed as a general condition of probation, that is, as an "other fee[] imposed by the court" under ORS 137.540(1)(a). The criminal code does not define the term "fee." Webster's Third New Int'l Dictionary, 833 (unabridged ed. 1993), defines "fee" as

"a charge fixed by law or by an institution (as a university) for certain privileges or services * * * a charge fixed by law for the services of a public officer * * * compensation often in the form of a fixed charge for professional service * * *."²

The ordinary legal meaning of "fee" is a "charge for labor or services, especially professional services." Black's Law Dictionary, 629 (7th ed. 1999). In turn, "service" means, as pertinent here, not only "professional or other useful ministration" but also "the duties, work or business performed or discharged by a government official." Webster's Third New Int'l Dictionary at 2075. A fee therefore ordinarily is a charge, often a fixed charged, for a professional or other useful service, including a service or function provided by a governmental body.³ Under that definition, a fee plausibly can include a charge imposed to recover the costs of maintaining an offender in a local correctional facility.

We do not perceive any meaningful distinction in this context between the term "fee" and related terms such as "cost" or "expense." Each of the latter terms also is defined in part as an amount paid or charged for a service rendered. See Webster's Third New Int'l Dictionary at 515, 800. Consistently with the similarity between the meaning of the term "fee" and the meanings of the terms "costs" and "expenses," several provisions of the criminal code authorize imposition of a "fee" to offset or recover "costs." See, e.g., ORS 137.630 (setting out duties of probation officers and providing that probation officers shall not be required to collect from supervised persons "any fees to offset the costs of supervising the probation"); ORS 144.102(2)(h) (person attending victim impact treatment session may be required to pay a "reasonable fee" to the victim impact program "to offset the cost of the person's participation"); ORS 144.103 ("costs incurred" as a result of imposition of enhanced term of post-prison supervision for sex offenders shall be paid by an increase in supervision "fees" imposed under ORS 423.570); ORS 423.570 (providing that persons sentenced to probation or placed on parole, post-prison supervision or other form of community supervision shall be required to pay a monthly "fee" to offset "costs" of supervision). Thus, a "fee" logically can be imposed to cover jail "costs" or "expenses."

Also as pertinent to the textual level of analysis, where ORS 137.540(1)(a) refers to "supervision fees, fines, restitution or other fees ordered by the court" (emphasis added), we infer that the legislature intended "other fees" to be of the same general type as the specifically enumerated fees. See State v. Moore, 174 Or.App. 94, 25 P.3d 398 (2001)

(under the principle of ejusdem generis, the general will partake of the same characteristics as the specific examples; citing Boyd v. Essin, 170 Or.App. 509, 516-17, 12 P.3d 1003 (2000),

rev. den. 331 Or. 674, 21 P.3d 96 (2001)). Fees imposed to recover the costs of maintaining an offender in the county jail are directly analogous to supervision fees imposed on an offender placed on probation but not confined in the county jail, see ORS 423.570. Thus, those fees properly are included in the phrase "other fees."

For all of the above reasons, we conclude that the phrase "other fees" in ORS 137.540(1)(a) includes amounts imposed by sentencing courts to recover costs or expenses incurred by a county in maintaining an offender in a local correctional facility.

The context of ORS 137.540(1)(a) supports that interpretation. ORS 137.290 requires trial courts to impose on a convicted defendant a "unitary assessment"; the assessment must be imposed "in addition to any other monetary obligation imposed." (Emphasis added.) Under ORS 137.293, "[a]ll fines, costs, assessments, restitution, compensatory fines and other monetary obligations imposed on a convicted person" constitute a single monetary obligation. (Emphasis added.) ORS 137.295 sets out the required distribution of money paid by convicted defendants against "monetary obligations imposed as a result of that conviction" and sets out four "categories of monetary obligations." Categories one and two consist of, respectively, compensatory fines and restitution; category three consists of the unitary assessment, costs for appointed counsel and other costs incurred by the state in prosecuting the defendant; category four consists of monetary obligations imposed upon the defendant that do not fall in the other categories; they "include, but are not limited to," monetary obligations required to be paid to specified entities. (Emphasis added.) Also as pertinent here, ORS 137.452 sets out procedures for obtaining a satisfaction of a money judgment when "a person is convicted of an offense and sentenced to pay any monetary obligation [.]" (Emphasis added.) Under ORS 161.675, a sentencing court that imposes a "sum of money for any purpose," either as a part of a sentence or as a condition of probation may order payment of the sum in installments or, if the court finds that the defendant has assets to pay the amounts ordered, may order payment during the period of imprisonment. (Emphasis added.) Each of those statutes—particularly the emphasized phrases-refers in broad, general, inclusive terms to monetary obligations that a sentencing court may impose on a convicted defendant. Thus, each of those statutes suggests that, consistently with the plain meaning of the phrase "other fees" in ORS 137.540(1), the trial court was authorized to impose the "fee" or costs imposed in this case.

We separately consider another related statute. ORS 137.520 provides that, when a court sentences an offender to probation and orders as a condition of probation that the offender be confined in the county jail for a period of time, the court also may authorize, limit, or prohibit the release of the offender on work release.⁴ ORS 137.520(2). An offender placed on work...