State v. Rogers

• Decision Date: 16 March 1977
• Docket Number: No. 59197,59197
• Citation: 251 N.W.2d 239
• Parties: STATE of Iowa, Appellee, v. John Clinton ROGERS, Appellant.
• Court: Iowa Supreme Court

Page 239

251 N.W.2d 239

STATE of Iowa, Appellee, v. John Clinton ROGERS, Appellant.

No. 59197.

Supreme Court of Iowa.

March 16, 1977.

Dewayne A. Knoshaug, Clarion, for appellant.

Richard C. Turner, Atty. Gen., Mark Beckman, Asst. Atty. Gen., and Larry E. Ivers, County Atty., for appellee.

Considered en banc.

REYNOLDSON, Justice.

This case of first impression requires us to examine trial court's powers to impose innovative probationary conditions under § 789A.1(2), The Code, 1975. Defendant was tried and convicted of a § 321.281 offense (driving while under the influence). The district court imposed a fine and sentence but suspended the sentence upon condition defendant reimburse to the county the fees paid his court-appointed counsel. Defendant retained his own counsel and appeals. In the unique circumstances disclosed by this record, we affirm.

This 25-year-old defendant, a high school graduate, was an over-the-road truck driver and mechanic. He was married, with one small child. As a result of this drunk-driving episode on September 7, 1975, and a later unrelated minor accident, defendant's truck-driving job was terminated on an undisclosed date with two weeks' pay. He had been earning at the rate of $10,000 per year and his wife had employment caring for children in their home. Defendant owned an $800 car and a home in which he had an equity of $3500.

Defendant was unemployed on October 13, 1975 when the court ordered his present counsel to represent him at public expense "* * * however this order and the defendant's employment will be review (sic) prior to time for trial."

A different judge presided at trial. There is no indication this judge conducted the contemplated review of defendant's indigency status when trial commenced on November 25, 1975. Defendant was then employed as a mechanic at $150 per week. His national guard activities paid $70 per month. Neither defendant nor his counsel saw fit to inform trial court of the changed conditions. Of the 26 1/2 hours of time spent on this case by defense counsel, only five hours were expended during the interval defendant was not fully employed.

In its December 8, 1975 sentence, the district court included the only controverted condition of probation:

"The defendant shall reimburse Wright County, Iowa, for the amount of his attorney fee as authorized and approved by this court, said reimbursement shall be paid according to a schedule to be established by his probation officer. The probation officer shall submit the required schedules of installment payments to this court for approval."

There is no issue here relating to an indigent's constitutional right to counsel at public expense, or to the unconstitutionality of this particular condition. Defendant does not contest the reasonableness of the fee. He raised no objections below to the imposition of repayment as a condition of probation. He does not contend he cannot pay the installments. Nevertheless, defendant appeals here asserting this condition was "improper" in absence of express statutory authorization.

I. Statutory changes and prior case law.

In the situation confronting trial court at sentencing, we are convinced sufficient statutory authority existed in the broad delegation of probationary power granted by the legislature in 1973:

"789A.1 Deferred judgment or suspended sentence probation.

1. * * *

2. By record entry at time of or after sentencing, the court may suspend the sentence and place the defendant on probation upon such terms and conditions as it may require. " (Emphasis supplied).

Before the 1973 legislature repealed § 247.20 (Laws 65 G.A. Ch. 295, § 16) this predecessor statute had provided:

"247.20 Probation by court. The trial court before which a person has been convicted of any crime * * * may by record entry at time of or after sentence is pronounced but before imprisonment suspend the sentence and grant probation to said person during good behavior." (Emphasis supplied).

It seems obvious the 1973 legislature, in repealing § 247.20 and substituting § 789A.1, intended the sentencing court to have more authority than to merely impose conditions for the good behavior of a convicted criminal. Good behavior is the obligation of every citizen. See State v. McGinnis, 243 N.W.2d 583, 587-589 (Iowa 1976); 24 C.J.S. Criminal Law § 1571(8), at 472 (1961).

Nor is it necessary to invoke the rule of statutory construction that ordinarily a change in the language of a statute indicates a legislative intent to change the law. Mallory v. Paradise, 173 N.W.2d 264, 267-268 (Iowa 1969); State v. Downing, 261 Iowa 965, 972, 155 N.W.2d 517, 521 (1968); Holland v. State, 253 Iowa 1006, 1013, 115 N.W.2d 161, 165 (1962).

Other new language in chapter 789A, The Code, makes clear the several statutory changes were designed to "provide maximum opportunity for the rehabilitation of the defendant and protection of the community from further offenses by the defendant and others." Section 789A.1(2), The Code.

The expanded provision permitting an Iowa sentencing court to impose probation provisions "upon such terms and conditions as it may require" may have been patterned after the federal statute permitting the federal trial courts to grant probation "for such period and upon such terms and conditions as the court deems best." 18 U.S.C.A. § 3651. The great discretion this language grants federal sentencing courts to establish conditions of probation is touched on, infra.

It is apparent the above § 789A.1(2) language selected by Iowa's legislature is broad, an authorization for this court to permit the exercise of judicial judgment in probation conditions. We should not require the general assembly to take the lead by embalming specifics in further statutes.

A philosophy that the legislature must lay out statutory conditions of probation would violate A.B.A. Standards Relating to Probation § 3.2, at 44 (Approved Draft, 1970):

"3.2 Nature and determination of conditions.

(a) It should be a condition of every sentence to probation that the probationer lead a law-abiding life during the period of his probation. No other conditions should be required by statute; but the sentencing court should be authorized to prescribe additional conditions to fit the circumstances of each case. * * * " (Emphasis supplied).

Additional constraints on statutorily-granted judicial authority would destroy that flexibility the United States Supreme Court said was inherent in the similar language of the corresponding federal statute, supra:

"To accomplish the purpose of the statute, an exceptional degree of flexibility in the administration is essential. It is necessary to individualize each case, to give that careful, humane and comprehensive consideration to the particular situation of each offender which would be possible only in the exercise of a broad discretion."

Burns v. United States, 287 U.S. 216, 220, 53 S.Ct. 154, 155-156, 77 L.Ed. 266, 269 (1932).

While not applicable here, the new Iowa Criminal Code enacted by the 66th General Assembly, Ch. 1245, 1976 Session, insures the same flexibility:

"Sec. 705. Conditions of probation. The court, in ordering probation, may impose any reasonable rules and conditions which will promote rehabilitation of the defendant and protection of the community, including adherence to regulations generally applicable to persons released on parole." (Emphasis supplied).

It may be argued the legislature's separate provisions for restitution (of amounts a victim might recover in a civil action) as a condition of probation evidences the legislature's intent to prohibit payment of any other sum as a condition of probation. Section 789A.8, The Code. It could as easily be inferred the legislature specifically authorized restitution because it is a potential condition of probation in almost every sentence. In addition, provisions of § 789A.8 avoid duplication of payments which might otherwise occur through concurrent operation of civil remedies and probation restitution. No such tensions exist here this court has already concluded there is no common law or statutory right to recover attorney fees expended in defense of an indigent. Woodbury County v. Anderson, 164 N.W.2d 129 (Iowa 1969).

Of course, the Anderson court never faced the problem we now confront. It simply held the county in a civil action could not recover from the indigent criminal-case defendant those sums expended for his attorney fees. It is true the opinion invited legislative scrutiny and indicated such amounts could be constitutionally included in costs. The decision largely rested on our long-established rule that costs are taxable only to the extent provided by statute. Atherton v. State Conservation Commission, 203 N.W.2d 620, 622 (Iowa 1973); State v. Ronek, 176 N.W.2d 153, 158 (Iowa 1970); City of Ottumwa v. Taylor, 251 Iowa 618, 621, 102 N.W.2d 376, 378 (1960). The Anderson court rejected "(d)efendant's contention that liability may not be imposed on an indigent defendant to reimburse the county for expenditures made for court-appointed counsel." 164 N.W.2d at 134.

In the year following Anderson the legislature merely provided for the taxation of these fees as costs in the rare situation involving a person who "desires legal assistance and is financially able to secure counsel but refuses to employ an attorney." Section 336B.6, The Code. It should be parenthetically observed § 336B.6 was enacted during the ascendancy of In re Allen, 71 Cal.2d 388, 78 Cal.Rptr. 207, 455 P.2d 143 (1969), which held a probation provision requiring reimbursement of court appointed counsel fees violated amendment 6, United States Constitution. Of course, a contrary and finally authoritative interpretation of the United States Constitution has since been reached by the United States Supreme Court, Fuller v. Oregon, 417 U.S. 40, 94 S.Ct. 2116, 40 L.Ed.2d 642 (1974), six justices voting for the majority opinion and Mr. Justice...