Brief for Respondent — Fuller v. Oregon

a RY | Serene Court,

In the Supreme

of the Ginited States

OCTOBER TERM, 1973

No. 73-5280

PRINCE ERIC FULLER,

STATE OF OREGON,

On Writ of Certiorari to the Court of Appeals

of the State of Oregon

BRIEF FOR RESPONDENT

SUBJECT INDEX

Page

The Questions Presented ...........--------------------e-reeeeeeeeeeeees 1

Statement of the Case .............-------------------eeeeceeenerneeeeeees 2

Summary of Argument ...........--------------------ceeeeeeereereeees 2

Argument «.......-----.-------n-e-cneeeeneeeensenedeeneetenenennencecensencenees 3

Statutory Scheme ............-------------------e---rereceeerereeees 3

Petitioner’s Contentions

I. The Oregon recoupment statutes do not

deny petitioner equal protection of the laws

because they do not single out an impermis-

Sible CASS ......--.------c---coc-eceecnreeveserecenncteoseenccecasserees 14

II. Petitioner has not properly raised any

claim that the Oregon recoupment statutes

deny him due process of law; even if such

claim is properly presented, the statutes,

taken as a whole, provide adequate due pro-

CeSS Protections ...........---------c-c-ce-neceereeeerenneneneneens 18

III. The Oregon recoupment statutes have no

appreciable “chilling effect” on petitioner’s

exercise of his right to counsel ................---------- 22

COMCHUSION 2..0n0i0ccac-cccecceessteceoncenssoonenceetwencssorensecsnsoveccneesate 29

Addendum ..........---.--------ce--consssosssensereneecensnnnnennnscennssenseens 30

TABLE OF AUTHORITIES

Cases Cited

Page

In re Allen, 71 Cal 2d 388, 78 Cal Rptr 207, 455 P2d

143 (1969) ..-.-2------------c-c-cc-nececeseennenseesesecsnerenessnsenenees 25

Argersinger v. Hamlin, 407 US 25, 92 S Ct 2006, 32

L Ed 2d 530 (1972) - “OS ne Biss Tg ene CO 4

Chaffin v. Stynchcombe, 412 US 17, 93 S Ct 1977, 36

3d 38 714 (1978)... .-----~----..-------- 28, 29

Coleman v. Alabama, 399 US 1, 90 S Ct 1999, 26 L Ed

Dd BET (1GTO) au -—----a-a-n-n-neninnnenorennereveconennceneenseee 6

Crampton v. Ohio, 402 US 183, 91 S Ct 1454, 28 L

Ed 2d 711 (1971) EE EEE Se RT 28

Gardner v. Broderick, 392 US 273, 88 Ss Ct 1913, 20

L.Ed 26 1082 (1968) cassia. io oniscnn-noconneee 26

Gideon v. Wainwright, 372 US 335, 83 S Ct 792, 9

L Ed 2d 799, 93 ALR 2d 733 (1963) Re ected 3, 6

Gilbert v. California, 388 US 263, 87 S Ct 1951, 18

Ly Bd BA11 76 (1967) 222-2222 2-nenncenennenoenserenserses 6

Griffin v. California, 380 US 609, 86 S Ct 1229, 14 L

Ed 2d 106 (1965) .............22-------ecseeorconeoesorscenesesserees 27

Griffin v. Ilinois, 351 US 12, 19, 76 S Ct 585, 100 L

Ed 801 (1956) ....-.--...-.-2-2-02-c-c-nsecnneveneensceneneseseeoreneeeers 18

Hamilton v. Alabama, 368 US 52, 82 S Ct 157, 7 L

Ed 2d 114 (1961) ...........22--c-c--c--concecsocceneecsneosenesserees 6

James v. Strange, 407 US 128, 92 S Ct 2027, 32 L Ed

2d 600 (1972) .. 9, 14, 15, 20, 21, 23

McGinnis v. Royster, 410 US 263, 93 s Ct 1055, 35 L

Bed 24 262, 288 (1973) -....---.-2..-2--------e-eeceecsnecneeeneaee 15, 18

McGowan v. Maryland, 366 US 420, 425-426, 81S

Ct 1101, 6 L Ed 2d 393 (1961) - 15

Moore v. Illinois, 408 US 786, 92 S Ct 2562, 33 L Ed

2d 706 (1972) . 20

North Carolina v. Pearce, 395 US 711, 89 S Ct 2072,

23 L Ed 2d 656 (1969) 28

ii

Cases Cited—Continued

People v. Amor, 35 Cal App 3d 344, 110 Cal Rptr 701

(1973) -...-.-c-ceon-nocecsneneneesesnensnerensncesessensnereneqeenenenecosene® 22

Rinaldi v. Yeager, 384 US 305, 76 S Ct 1497, 16 L Ed

2d 577 (1966) ......--..-.--.-.------v-ce-na--neeeaneneneese 14, 17, 20, 23

State v. Bouse, 199 Or 676, 264 P2d 800 (1953) -........ 4

State v. Fuller, — Or App —, 504 P2d 1393 (1973) passim

Stevenson v. Holzman, 254 Or 94, 458 P2d 414

CNG) nanan nnn in nnn nanan nnnarnnennnsecnenrnnenndoweneneosnrnt 4,8,9

Uniformed Sanitation Men Assoc. v. Commissioner,

392 US 280, 88 S Ct 1917, 20 L Ed 2d 1089 (1968) 27

United States v. Jackson, 390 US 570, 88 S Ct 1209,

i eee ee ee) - 26

United States v. Wade, 388 US 218, 87 S Ct 1926, 18

Law oe. 6

Whitley v. Murphy, 5 Or 328, 333 (1874) ...............- 22

Constitutional Provisions

US Const., Amend. VI ............-0:-----c-ec-csesceecsoveheneenrerenees 1.23

US Const., Amend. XIV. .........2--20--0-0--ccece-eeeees 2, 14, 18, 23

Or Const., Art. I, Sec 11) ...........2.---c-c-ecseceosnrorsneneseeenenees 3

Or Const., Art. I, Sec 15 ...........2.2.------c-eeeeeeecseeereseneeneness 24

Statutory Provisions

18 USC § 3006 A(f) ........-.-.-.----n---cceneorseceesensnsesterereensees

Ala Code, Tit 15, § 318 (12) (Supp 1969) -...................

Fla Stat Ann § 27.56 (Supp 1972-1973) ................-.---.

Idaho Code § 19-858 (Supp 1971)

Ind Ann Stat § 9-3501 (Supp 1970)

Iowa Code Ann § 775.5 (Supp 1972)

Kan Stat Ann § 22-4513 (Supp 1971)

Md Code Ann, Art 26, § 12C (Supp 1971) -.................

NM Stat Ann § 41-22-7 (Supp 1971)

ili

Statutory Provisions—Continued

Page

ND Cent Code § 29-07-01.1 (Supp 1971) ......0.0.......... 9

Ohio Rev Code Ann § 2941.51 (Supp 1971) ................ 9

RE I ichciencel poichcersehtiaan sain sisncanceiiniiarabnniepninnsarasennennnice 15

Re a ict Sisscidisncsa nin nchaonentanagaaaciacandcaseveuanansnsins 15

igo a ccaseaacnntlaeanmmasdusrennssanibenniasinagies 15

ORS 23.160-23.270 ..............-.....-.pe..ecsecseccseencseccnsseeeesobes 15

RU III sttisistarscnenmnsecsenavssarsonnsnbcduscesnenerasvensacstiieuncane 7, 8

I BNI es veesecsecenseenciseeevevereweeseventersenscensnases MBiecesenven 8

EI: MI I oka saeiecinvvenerninnspnssiinnsishvnniinnctbanwensicdaceosanoneien 4,6

I SI siiiserisecesscestsineenicwsniicinmhirinrnssinthirnnisinsinananesiteasSoiveh 5,6

RI TIN aisesciseccnancccasnnisnctsitinuicesshvcnachtimenceensellanwiesntnstanunins 15

EE _ Beene eee Sen ee 15

PN on ca scene ncemcnnngactemenygeseene 10, 17

IE I inciasnsts i haainsianiecntatesomtRaSieissasbeeemancsbeduorts 10

I NI iscccinsss rp ctinssnsresnnnsiccBipisgisiiesnsssasienanen seein 10, 11, 15

SC Code Ann § 17-283 (Supp 1971) ..........2.......2..0.....- 9

Tex Code Crim Proc, Art 1018 (1966)...............0.......... 9

Va Code Ann § 14.1-184 (Supp 1971) -.....00.0.2.02......... a

W Va Code Ann § 62-3-1 (Supp 1971) ........................ 9

Wis Stat Ann § 256.66 (1971) 0002... 9

Or Laws 1937, ch 406 ......0....00000 6

Or Laws 1961, ch 696 22... ceeceeeesccsceeceeseeeeeeeees 6

Other Authorities

A.B.A., Project on Providing Defense Services, 58-59

(Approved Draft 1968) ~........2.......ee eee eee eee 26

Kamisar & Choper, The Right to Counsel in Minne-

sota: Some Field Findings and Legal-Policy Ob-

servations, 48 Minn L Rev 1, 24 (1963) _............... 21

Note, Charging Costs of Prosecution to the Defend-

ant, 59 Georgetown L J 991, 998-999 (1971) ........ 16

Comment, Reimbursement of Defense Costs as a

Condition of Probation for Indigents, 67 Mich L

Rev 1404, 1418 22... 16,26

rene ET me Py OS Pe See APNE ROASTS RIL A ON 8 Oe NES

In the Supreme Court

of the United States

OCTOBER TERM, 1973

No. 73-5280

PRINCE ERIC FULLER,

Petitioner,

STATE OF OREGON,

Respondent.

On Writ of Certiorari to the Court of Appeals

of the State of Oregon

&

BRIEF FOR RESPONDENT

THE QUESTIONS PRESENTED

Respondent would except to petitioner’s statement of

the questions presented, and substitute its own:

1. Does the requirement that a non-indigent criminal

-defendant, after conviction, reimburse the county for his

court-appointed attorney’s fees as a condition of probation

violate the Equal Protection Clause of the United States

Constitution?

2. Is a requirement that a non-indigent criminal de-

fendant, after conviction, reimburse the county for his

court-appointed attorney’s fees an impermissible restric-

tion of the right to counsel as guaranteed by the Sixth and

2

Fourteenth Amendments to the Constitution of the

United States?

STATEMENT OF THE CASE

Respondent excepts to that portion of petitioner’s

statement of the case which suggests that the Oregon

Court of Appeals considered and passed on petitioner’s

claim that certain of his conditions of probation denied

him due process of law, as opposed to equal protection of

the laws. Petitioner’s statement of the case is otherwise

accepted.

SUMMARY OF ARGUMENT

The Oregon statutory scheme for recoupment of costs.

of court-appointed counsel does not deny petitioner equal

protection of the laws, inasmuch as the scheme only takes

effect when and if petitioner is no longer indigent and

is therefore fully capable of meeting his financial obli-

gation.

The Oregon statutory scheme for recoupment of costs

of court-appointed counsel does not deny petitioner due

process of law, in that it contains adequate procedural

safeguards to assure that any amount assessed against -

petitioner is just and equitable; moreover, petioner failed

to properly raise any such due process questions in the

court below.

The Oregon statutory scheme for recoupment of costs

of court-appointed counsel does not create a “chilling

effect” on petitioner’s right to counsel, inasmuch as the

PN PPE ENE ENTE S RTS IT ~~ a2 pe ae

3

applicability of the scheme to petitioner at the time coun-

sel is appointed is at best speculative and the likelihood

that the possible imposition of such a condition would

dissuade a criminal defendant from asking for legal

assistance is minimal.

ARGUMENT

Statutory. Scheme

Any adequate reply to the contentions of petitioner

and the amicus requires a far more thorough examination

of the total statutory scheme under which Oregon sup-

plies counsel for indigent criminal defendants than peti-

tioner or the amicus have seen fit to supply. Respondent

therefore provides its own:

1. Right to Counsel.

| In Oregon, recognition of the verity that one accused

of crime must be represented by counsel, and such counsel

should be appointed if the defendant is indigent, far

antedated Gideon v. Wainwright, 372 US 335, 83 S Ct 792,

9 L Ed 2d 799, 93 ALR 2d 733 (1963). Art. I, Sec 11 of

the Oregon Constitution provides:

“Rights of accused in criminal prosecution. In all

criminal prosecutions, the accused shall have the right

to public trial by an impartial jury in the county in

which the offense shall have been committed; to be

heard by himself and counsel; to demand the nature

and cause of the accusation against him, and to have a

copy thereof; to meet the witnesses face to face, and

to have compulsory process for obtaining witnesses in

his favor; provided, however, that any accused person,

in other than capital cases, and with the consent of

the trial judge, may elect to waive trial by jury and

4

consent to be tried by the judge of the court alone,

such election to be in writing; provided, however, that

in the circuit court ten members of the jury may

render a verdict of guilty or not guilty, save and ex-

cept a verdict of guilty of first degree murder, which

shall be found only by a unanimous verdict, and not

otherwise; provided further, that the existing laws

and constitutional provisions relative to criminal

prosecutions shall be continued and remain in effect

as to all prosecutions for crimes committed before the

taking effect of this amendment.” (emphasis sup-

plied)

Neither will just any counsel suffice; the appointment

must go to one who is, by experience and skill, prepared

to adequately represent defendant as the type of case and

facts demand. State v. Bouse, 199 Or 676, 264 P2d 800

(1953). This right to appointed counsel in Oregon was

extended to indigent defendants in all criminal cases in

Stevenson v. Holzman, 254 Or 94, 458 P2d 414 (1969),

fully three years before this Court decided that a similar

extension was a requirement of due process in Argersing-

er v. Hamlin, 407 US 25, 92 S Ct 2006, 32 L Ed 2d 530

(1972).

When a criminal defendant is arraigned upon an in-

dictment in circuit court—the Oregon court of general

trial jurisdiction—he is immediately entitled to appointed

counsel. ORS 135.320 provides:

“Court appointment of counsel; waiver. If upon

arraignment of a person accused in the circuit court of

a crime against the laws of this state, the person being

arraigned appears without counsel, the court having

jurisdiction of the case, in accordance with ORS

133.625, shall appoint suitable counsel to represent

5

him unless the person waives counsel and the court

approves the waiver.”

_The fees which appointed counsel may thereafter re-

ceive for performing services for the indigent defendant

are controlled by ORS 135.330:

“Appointed counsel’s fee; expenses; payment of ex-

penses and fee. (1) Cousel appointed pursuant to

ORS 133.625 or 135.320, if other than the Public De-

fender, shall, by order of the court, and subject to the

approval of the governing body of the county, be paid

by the county in which the proceeding is had, fair

compensation for representation in the case, and the

necessary disbursements. In no event shall the mini-

mum compensation for services rendered in conduct-

ing the defense be less than the fees set forth in the

following schedule:

“(a) When the accused is charged with a misde-

meanor, and a plea of ‘guilty’ is entered, $25.

“(b) When the accused is charged with a misde-

meanor, and a plea of ‘not guilty’ is entered, $50 per

day of trial, but not exceeding two days in any one

case.

“(c) When the accused is charged with a felony,

and a plea of ‘guilty’ is entered, $50.

“(d) When the accused is charged with a felony,

and a plea of ‘not guilty’ is entered, $100 per day of

trial, but not exceeding five days in any one case.

“(e) When the accused is before the court for any

proceedings other than those referred to in paragraphs

(a), (b), (c) and (d) of this subsection, $50 per day,

but not exceeding two days in any one case.

“(f) In extraordinary circumstances, payment in

excess of the limits stated herein may be made if the

presiding judge of the circuit court certifies that such

payment is necessary to provide fair compensation for

protracted representation in the case.

6

“(2) The person for whom counsel has been ap-

pointed is entitled to a reasonable sum for investiga-

tion, preparation and presentation of his case and he

or his counsel may upon cause shown; which need not

be disclosed to the district attorney prior to any hear-

ing, secure approval and authorization of payment of

such sums as the court finds are necessary and proper

in the investigation, preparation and presentation of

his case, including but not limited to travel, telephone

calls, photocopying or other reproduction of docu-

_ ments and expert witness fees.

“(3) Upon completion of all services by the attor-

ney or attorneys so appointed under ORS 135.320, the

attorney or attorneys shall submit to the court an affi-

davit containing an accurate statement of all reason-

able expenses of investigation and preparation paid

or incurred, supported by appropriate receipts or

vouchers. The court shall thereupon enter an order

directing the county to pay to such attorney or at-

torneys the amount of the expenses, or such portion

thereof as may be approved by the court.”

Both ORS 135.320 and 135.330 have their origin in

Or Laws 1937, ch 406, which—twenty-six years before

Gideon—provided for appointment of counsel for indi-

gent defendants and set a schedule of fees. In 1961, con-

temporaneous with Hamilton v. Alabama, 368 US 52, 82

S Ct 157, 7 L Ed 2d 114 (1961), and prior to the advancing

“critical stage” decisions exemplified by United States

v. Wade, 388 US 218, 87 S Ct 1926, 18 L Ed 2d 1149

(1967), Gilbert v. California, 388 US 263, 87 S Ct 1951,

18 L Ed 2d 1178 (1967) and Coleman v. Alabama, 399

US 1, 90 S Ct 1999, 26 L Ed 2d 387 (1970), the avail-

ability of appointive counsel was significantly expanded

to include many circumstances occurring prior to the

arraignment on an indictment before a circuit court.

7

See Or Laws 1961, ch 696. Availability has continued to

expand. ORS 133.625 at present provides:

“Court appointment of counsel. (1) Suitable coun-

sel for a defendant shall be appointed by a circuit

court if:

“(a) The defendant is before a court or magistrate

on a matter described in subsection (3) of this section;

and

“(b) The defendant requests aid of counsel; and

“(c) The defendant makes a verified financial

statement and provides other information. in writing

under oath showing his lack of ability to obtain

counsel and provide any other information required

by the court as to his inability to obtain counsel; and

“(d) It appears to the court that the defendant is

without means and is unable to obtain counsel.

“(2) If the defendant is before a justice or district

court in any proceeding described in subsection (3)

of this section, and complies with the provisions of

subsection (1) of this section, the magistrate shall

forward to the circuit court in his judicial district all

information obtained under subsection (1) of this

cection, along with his recommendations as to whether

or not the defendant is without means and is unable

to obtain counsel. The circuit court may thereupon

appoint suitable counsel for the defendant.

“(3) Counsel must be appointed for a defendant

who meets the requirements of subsection (1) of this

section and who is before the court or magistrate on

any of the following matters:

“(a) Charged with a crime for which a felony

sentence could be imposed.

“(b) For a hearing to determine whether an

enhanced sentence should be imposed when such

procecdings may result in the imposition of a felony

sentence.

“(c) For extradition proceedings under the pro-

visions of the Uniform Criminal Extradition Act.

“(d) For any proceeding concerning an order of

probation, including but not limited to the revoking

or amending thereof.

“(4) Unless otherwise ordered by the court, the

appointment of counsel under this section shall con-

tinue during all criminal proceedings resulting from

the defendant’s arrest through acquittal or the im-

position of punishment. The court having jurisdiction

of the case may substitute one appointed counsel for

another at any stage of the proceedings when the

interests of justice require such substitution.

“(5) If, at any time after the appointment of

counsel, the court having jurisdiction of the case finds

that the defendant is financially able to obtain counsel

or to make partial payment for the services of counsel,

the court may terminate the appointment of counsel

or require such partial payment or enter an order

against the defendant in favor of the county for such

fees as the county has paid and for which the defend-

ant is liable omer ORS 137.205. If, at any time during

criminal proceedings, the court having jurisdiction of

the case finds that the defendant is financially unable

to pay counsel whom he has retained, the court may

appoint counsel as provided in this section.”

The effective scope of ORS 133.625 has been even

broader since Stevenson v. Holzman, supra.

Expenses and fees are provided in ORS 133.635:

“Appointed counsel’s affidavit of expenses; pay-

ment of expenses and fees. Upon completion of all

services by the counsel so appointed under ORS

133.625, the counsel shall submit to the court an affi-

davit containing an accurate statement of all reason-

‘ able expenses paid or incurred in connection with

- such services, supported by appropriate receipts or

vouchers. The court shall thereupon enter an order

: E>... .

9

directing the county in which the proceeding is had

to pay the counsel the amount of the expenses, or

such portion thereof as may be approved by the court,

together with fees as set forth in subsection (1) of

ORS 135.330.”

Thus it can be seen that, in Oregon, an indigent de-

fendant receives court-appointed counsel at the earliest

possible moment, thereby assuring the availability of

counsel at every stage at which he is needed. The deci-

sion to appoint is made on the basis of a brief, verified

statement from defendant that he cannot retain his own

attorney. The emphasis is upon supplying immediate

professional help.

It is against this background of early and ever-

expanding concern for the provision of counsel for in-

digent criminal defendants, culminating in the Stevenson

decision, that the particular statutory provisions under

attack by petitioner must be examined and judged.

2. Recoupment Statutes. é

Like the federal government and a number of other

jurisdictions® Oregon has provided for a way in which,

under very limited circumstances, some or all of the funds

expended by the county in supplying counsel to an indi-

® See, e.g., 18 USC § 3006 A (f); Ala Code, Tit 15, § 318 (12) (Supp

1969); Fla Stat Ann § 27.56 (Supp 1972-1973); Idaho Code § 19-858

(Supp 1971); Ind Ann Stat § 9-3501 (Supp 1970); Iowa Code Ann § 775.5

(Supp 1972); Md Code Ann, Art 26, § 12C (Supp 1971); NM Stat Ann

§ 41-22-7 (Supp 1971); ND Cent Code § 29-07-01.1 (Supp 1971); Ohio

Rev Code Ann § 2941.51 (Supp 1971); SC Code Ann § 17-283 (Supp

1971); Tex Code Crim Proc, Art 1018 (1966); Va Code Ann § 141-184

(Supp 1971); W Va Code Ann § 62-3-1 (Supp 1971); Wis Stat Ann

§ 256.66 (1971). The Kansas recoupment statute, Kan Stat Ann § 22-4513

(Supp 1971), was held unconstitutional in James v. Strange, 407 US 128,

92 S Ct 2027, 32 L Ed 2d 600 (1972).

10

gent criminal defendant may be recouped. ORS 161.665-

161.685 provide:

“161.665 Costs. (1) The court may require a con-

victed defendant to pay costs.

“(2) Costs shall be limited to expenses specially

incurred by the state in prosecuting the defendant.

They cannot include expenses inherent in providing

a constitutionally guaranteed jury trial or expendi-

tures in connection with the maintenance and opera-

tion of government agencies that must be made by the

public irrespective of specific violations of law.

“(3) The court shall not sentence a defendant to

pay costs unless the defendant is or will be able to

pay them. In determining the amount and method

of payment of costs, the court shall take account of

the financial resources of the defendant and the nature

of the burden that payment of costs will impose.

“(4) A defendant who has been sentenced to pay

costs and who is not in contumacious default in the

payment thereof may at any time petition the court

which sentenced him for remission of the payment of

costs or of any unpaid portion thereof. If it appears

to the satisfaction of the court that payment of the

amount due will impose manifest hardship on the

defendant or his immediate family, the court may

remit all or part of the amount due in costs, or modify

the method of payment under ORS 161.675.”

“161.675 Time and method of payment of fines

and costs. (1) When a defendant is sentenced to pay

a fine or costs, the court may grant permission for

payment to be made within a specified period of time

or in specified instalments. If no such permission is

included in the sentence the fine shall be payable

forthwith.

“(2) When a defendant sentenced to pay a fine

or costs is also placed on probation or imposition or

execution of sentence is suspended, the court may

11

make payment of the fine or costs a condition of pro-

bation or suspension of sentence.”

“161.685 Effect of nonpayment of fines or costs.

“(1) When a defendant sentenced to pay a fine de-

faults in the payment thereof or of any instalment, the

court on motion of the district attorney or upon its own

motion may require him to show cause why his default

should not be treated as contempt of court, and may

issue a show cause citation or a warrant of arrest for

his appearance.

“(2) Unless the defendant shows that his default

was not attributable to an intentional refusal to obey

the order of the court or to a failure on his part to

make a good faith effort to make the payment, the

court may find that his default constitutes contempt

and may order him committed until the fine, or a

specified part thereof, is paid.

“(3) When a fine is imposed on a corporation or

unincorporated association, it is the duty of the per-

son authorized to make disbursement from the assets

of the corporation or association to pay the fine from

those assets, and his failure to do so may be held to

be contempt unless he makes the showing required in

subsection (2) of this section.

“(4) The term of imprisonment for contempt for

nonpayment of fines shall be set forth in the commit-

ment order, and shall not exceed one day for each $25

of the fine, 30 days if the fine was imposed upon con-

viction of a violation or misdemeanor, or one year in

any other case, whichever is the shorter period. A

person committed for nonpayment of a fine shall be

given credit toward payment for each day of im-

prisonment at the rate specified in the commitment

order.

“(5) If it appears to the satisfaction of the court

that the default in the payment of a fine is not con-

tempt, the court may enter an order allowing the

defendant additional time for payment, reducing the

ae

|

12

amount thereof or of each instalment or revoking the

fine or the unpaid portion thereof in whole or in part.

“(6) A default in the payment of a fine or costs

or any instalment thereof may be collected by any

means authorized by law for the enforcement of a

judgment. The levy of execution for the collection of

a fine shall not discharge a defendant committed to

imprisonment for contempt until the amount of the

fine has actually been collected.”

By its decision in the present case, the Oregon Court

of Appeals has now authoritatively interpreted these

provisions:

“Oregon’s recoupment statute provides that a de-

fendant shall not be sentenced to repay costs ‘unless

the defendant is or will be able to pay them,’ and

that the court may consider ‘the nature of the burden

that payment of costs will impose,’ including ‘mani-

fest hardship on the defendant or his immediate

family.’ ORS 161.665 (3) and (4). Thus, an indigent

defendant is entitled to free counsel immediately

(which is when he needs it), but may be later re-

quired to repay this cost if he ‘is or will be’ able to do

so, that is, if he has ceased or likely will cease to be

indigent. A defendant is not denied counsel while he

is indigent, and he is required to repay appointed

counsel's fee only if and when he is no longer indigent.

If there is no likelihood that a defendant's indigency

will end, a judgment for costs cannot be imposed.

ORS 161.665 (3). If there appears to be the future

possibility of ability to repay at the time of sen-

tencing, but the defendant remains an indigent, the

judgment for costs cannot be collected. The court

retains jurisdiction to determine ability to pay. No

denial of the exemptions from execution afforded to

other judgment debtors is included in the Oregon

statutes. ORS 161.665 to ORS 161.685 neither denies

a defendant the right to counsel, nor discriminates

against him because of poverty.

Ota KONE — —

PREM oie v la a

13

“Where payment of costs is made a condition of

probation the possibility exists that a defendant may

not only have judgment for the costs entered against

him, but he may, in fact, be subject to revocation of

his probation. However, it is clear from the tenor of

the recoupment statute that the discretion of the trial

court to revoke probation for nonpayment of costs is

sharply limited. Such revocation may only occur if

the court specifically finds: (1) the defendant has the

present financial ability to repay the costs involved

(either all or by installments) without hardship to

himself or his family, cf., ORS 161.665 (4); and (2)

the defendant’s failure to repay (either all or by in-

stallments) is an intentional, contumacious default,

cf., ORS 161.665 (4). If the evidence adduced at a

revocation hearing does not establish both of the

above elements, not only is revocation improper, but

the trial court may well consider remission of the

unpaid costs pursuant to ORS 161.665 (4). Given

these substantial limitations on a trial court’s autho-

rity to revoke probation for nonpayment of costs, we

perceive no constitutional infirmity with a sentence

that places a defendant on probation on condition that

he repay costs.

“A sentencing court may very possibly consider

the repayment of the expenses of prosecution, like

that of restitution to the victim of crime, ORS 137.540

(1), rehabilitative. We see no good reason why a de-

fendant should have the right to refuse to make resti-

tution or pay costs imposed against him as a result of

his own wrongdoing if in the future it is determined

that his circumstances have changed so that he is able

to pay without any hardship to himself or his imme-

diate family. In many instances rehabilitation may

involve a defendant’s doing the best he can to redress

his victims, which may include both a particular vic-

tim and society as a whole.” (footnote omitted) (em-

14

phasis in original) State v. Fuller, — Or App — —, 504

P2d 1393, 1396-1397 (1973) (A. 11-13).

From this interpretation of the applicable Oregon

statutes, petitioner has sought review by this Court.

Petitioner’s Contentions

Petitioner attacks the Oregon statutory scheme for

recoupment of the cost of court-appointed counsel from

those who, subsequent to the appointment of counsel, are

no longer indigent. The attack is mounted on three

broad fronts: equal protection, due process and “chilling

effect.” Among others, petitioner raises questions re-

served in two previous rulings of this Court, James v.

Strange, supra and Rinaldi v. Yeager, 384 US 305, 76

S Ct 1497, 16 L Ed 2d 577 (1966).

I

THE OREGON RECOUPMENT STATUTES

DO NOT DENY PETITIONER EQUAL PRO-

TECTION OF THE LAWS BECAUSE THEY

DO NOT SINGLE OUT AN IMPERMIS-

SIBLE CLASS.

Petitioner seeks to attack the Oregon statutes as vio-

lative of his right to equal protection of the laws under

the Fourteenth Amendment, US Const.Amend. XIV, § 1.®

@ Loss of indigency status is a necessary condition precedent before

the Oregon statute can be applied, as is made patent by the decision of

the Oregon Court of Appeals from which the instant petition for

certiorari has been prosecuted. Ibid.

® What is required, in order to permit the state statutory scheme to

pass equal protection scrutiny, is “some rationality”in singling out the

Gaus Guth ahi: en Seaiadinn Gund. James v. Strange, supra, 407 US at

140; Rinaldi v. Yeager, supra, 384 US at 308-309. As this Court has

elsewhere phrased it:

“. . . [Multiple legislative classifications and groupings. . .

(Continued on page 15)

“—

re Doce ORS te

i I ak ae

15

In support of this contention, he advances a variety of

theories:

Petitioner first. contends that the Oregon statutory

scheme is defective for the same reason that led to this

Court striking down the Kansas recoupment statute in

James v. Strange, supra, i.e., it fails to provide that the

judgment for costs (which include attorney fees) under

ORS 161.685 (1) and (6) is subject to the exemptions

from execution provided other debtors. In this contention,

petitioner is wrong. As the Oregon Court of Appeals has

noted, “No denial of the exemptions from execution

afforded to other judgment debtors is included\in the

Oregon statutes.” State v. Fuller, supra, 504 P2d at 1397

(A. 12). See, ORS 137.180; 137.450; 18.320; 18.350; 18.400;

23.160-23.270. Petitioner’s insistence that the granting

of such exemptions appear in the recoupment statute itself

is unreasonable; it is enough for the Oregon court to find

(as it has) that the exemptions apply.

Petitioner next argues that the recoupment statutes

deny equal protection of the laws because they apply

only to those who have been found guilty “and [do] not

apply to those indigent defendants who, although they

(Continued from page 14)

require only some rational basis to sustain them.” McGinnis v.

Royster, 410 US 263, 93 S Ct 1055, 35 L Ed 2d 282, 288 (1973).

“, .* . [T]he Fourteenth Amendment permits the States a wide

scope of discretion in enacting laws which affect some groups of

citizens differently than others. The constitutional safeguard is

offended only if the classification rests on grounds wholly irrele-

vant to the achievement of the State’s objective. State legislatures

are presumed to have acted within their constitutional power despite ~

the fact that, in practice, their laws result in some inequality. A

statutory discrimination will not be set aside if any state of facts

reasonably may be conceived to justify it.” McGowan v. Maryland,

366 US 420, “425-426, 81 S Ct 1101, 6 L Ed 2d 393 (1961).

16

may have been represented by court-appointed counsel,

were fortunate enough to their cases dismissed or who

were acquitted after trial by jury.” (Pet. Br. 11).© Such

a distinction is a valid and appropriate one for the state

to draw. See Comment, Reimbursement of Defense Costs

as a Condition of Probation for Indigents, 67 Mich L Rev

1404, 1418; Note, Charging Costs of Prosecution to the

Defendant, 59 Georgetown L J 991, 998-999 (1971). Under

it, only those persons shown beyond a reasonable doubt

and to a moral certainty to be guilty of a crime (and, thus,

to be responsible for the necessity of expending public,

funds for their attorney) are subject to recoupment. Of

the residuum, some may be innocent so that the impo-

sition of further burden on them (even if they are now

capable of paying) offends any traditional sense of fair-

ness. Some others, of course, committed the offense but

achieved discharge or acquittal because of the high burden

of proof faced by the prosecution. There might be valid

policy grounds for requiring that this group, too, pay

for their counsel (again assuming, as with those in the

guilty group who will be required to pay, that they are

now capable of paying), but identification of these indi-

viduals would necessitate a subsequent proceeding with

the civil burden of proof, surely a counterproductive effort

on behalf of the state coffers in view of the relatively

small amounts originally involved and the necessity of

re-enacting the earlier trial.

Petitioner also asserts—though without citing any

@ Petitioner inadvertently omits mention that those acquitted in a

trial to the court sitting without a jury are likewise exempt.

< Se memerreeenes

|

authority—that very few Oregon State Penitentiary or

Oregon State Correctional Institution inmates have been

required to repay costs. The statute makes no such dis-

tinction. See ORS 161.655 (1), ante, at 10. Accepting this

proposition to be true, however, it does nothing to demon-

strate any kind of invidious discrimination between those .

incarcerated and those placed on probation. Rather, it

recognizes that one who was indigent when placed on

trial is unlikely to have improved upon his condition

either before going to or while residing in a state insti-

tution. To impose the requirements in the majority of

cases in the hope that an inmate might someday come

into adequate funds would be to indulge in profitless

speculation.

Nothing in the statute, however, prevents imposition

of a requirement that a convicted defendant who is con-

fined to the penitentiary pay costs, if it should appear at

the time of sentencing that he would be able to do so.

The present case is thus totally unlike Rinaldi v. Yeager,

supra where a New Jersey statute was declared uncon-

stitutional because it mandated discriminatory treat-

ment of unsuccessful indigent criminal appellants who

were incarcerated, on the one hand, as opposed to un-

successful indigent criminal appellants who were fined,

given suspended sentences or placed on parole, on the

other. Under Oregon law, all convicted defendants are

potentially subject to the same requirement of repayment

of costs.®

® Petitioner would find a violation of Rinaldi in the fact that those

(Continued on page 18)

18

Indigency, traditionally, is a suspect class, as it should

be. See, e.g., Griffin v. Illinois, 351 US 12, 19, 76 S Ct 585,

100 L Ed 891 (1956). But the Oregon statute applies to

another class entirely: those who are not indigent, who

are able to pay. The class has one other common charac-

teristic: it consists of those who have been convicted of

a crime. This latter class is surely a valid one; if it is not,

the whole structure of punishment for violation of the

criminal law is lost. Thus viewed, this class of convicted

criminal defendants who have or will have the means to

reimburse the county for the cost of their court-appointed

counsel is not unreasonable and should survive consti-

tutional scrutiny. See McGinnis v. Royster, supra.

II

PETITIONER HAS NOT PROPERLY

RAISED ANY CLAIM THAT THE OREGON

RECOUPMENT STATUTES DENY HIM

DUE PROCESS OF LAW; EVEN IF SUCH

CLAIM IS PROPERLY PRESENTED, THE

STATUTES, TAKEN AS A WHOLE, PRO-

VIDE ADEQUATE DUE PROCESS PRO-

TECTIONS.

Although prominently mentioned as a ground for

appeal, very little of petitioner’s brief speaks to any al-

leged deprivation of petitioner’s rights under the Due

Process Clause of the Fourteenth Amendment, U. S.

Const. Amend. XIV, § 1.

Petitioner’s due process attack consists of two con-

tentions: (1) the state has failed to show that collection

(Continued from page 17)

acquitted are absolved from repayment responsibilities (Pet Br 12).

However, as demonstrated earlier, this distinction between those con-

victed and those acquitted is appropriate. See discussion at p 15-16, infra.

19

through the judiciary’s use of conditions of probation is

appropriate; and (2) petitioner may be subject to a

judgment for attorney fees without a notice and hearing

because the statute does not specifically provice for such

notice and hearing.®

@ Neither of these contentions was raised in the courts below. Peti-

tioner’s initial claim before the Oregon Court of Appeals was that

“The court also imposed as a condition of defendant’s probation

the requirement that he pay the cost of his attorney’s fees as well as

$375.00 for the cost of the defense attorney’s investigator (Tr 13).

Defendant believes that such a condition is unreasonable because it

is grossly unfair for the state to try and convict an indigent de-

fendant and then require him to pay for the cost of his defense. De-

fendant is of the opinion that this denies him equal protection of

the laws as guaranteed by the Fourteenth Amendment to the Con-

stitution of the United States and Article I, Section 20 of the Oregon

Constitution. See James v. Strange, — US —, 92 S Ct —, 32 L

Ed2d 600 (1972).

“The reimbursement of the court appointed attorney and investi-

gator’s fees, defendant believes, is an unreasonable burden upon

him because he is financing his way through school by means of a

GI Bill by receiving $175.00 per month. Defendant was augmenting

this sum by selling posters and silk screen work to giftshops on a

commission basis (Tr 9-10). From these funds the defendant had

to pay tuition, book fees, as well as board and room (Tr 9). A re-

quirement that he reimburse the attorney and pay for the investi-

gatory fees is therefore in defendant’s view an unreasonable con-

dition of probation.” (Appellant’s Brief before Oregon Court of

Appeals at 6-7)

Nor did the Court of Appeals recognize such issues as being raised.

Their summary of appellant’s (petitioner’s) contentions made no men-

tion of due process:

“. . . [Petitioner] presents three issues:

“(1) Are fees of appointed defense attorneys and investigation

‘costs’ which may be assessed against a convicted defendant under

ORS 161.665?

“(2) Is such a statute inconsistent with defendant’s right to

counsel or to equal protection of the laws?

“(3) Assuming a civil recoupment statute is valid under the Sixth

and Fourteenth Amendments to the United States Constitution, is

the repayment of costs as a condition of probation involving pos-

sible imprisonment under certain circumstances for nonpayment

impermissible under the Equal Protection Clause?” State v. Fuller,

supra, 504 P2d at 1395-1396 (A. 10).

Petitioner expanded his contentions in his Petition for Rehearing to the

(Continued on page 20)

20

Petitioner urges that it is somehow constitutionally

impermissible for a court to be given the opportunity

to require repayment of costs born by the state in pro-

viding a defense for a defendant who is now capable of

repaying them. It is difficult to imagine how else the

money is to be collected, if collection is proper. Courts

are the traditional method by which judgments are ob-

tained. Moreover, an attack which goes to the suitability

of courts performing these functions is inappropriate.

The efficacy of the procedure adopted by the state is

not a matter for review here. The question is not ad-

viseability, or even efficiency, but constitutionality.

James v. Strange, supra, 407 US at 133-134.

There remains the underlying inquiry concerning

the existence of a state interest justifying the imposition

of any procedure. Justification requires only some ra-

tional nexus between means and end (not a “compelling

interest,” as petitioner urges). See Id., at 140; Rinaldi v.

Yeager, supra, 384 US at 308-309. The purpose of the

statute is obvious: recovery of those expenditures from

public coffers on behalf of individuals who are in a

position to pay them back. Admittedly, where an initial

(Continued from page 19)

Court of Appeals (Pet for Rehearing 1-5) and his essentially identical

Petition for Review to the Oregon Supreme Court (Pet for Review 1-5),

both of which were denied without a responsive brief from the state

and without oral argument, but neither petition fairly raised nor even

the matters now urged. Under these circumstances, they

should not be considered by this Court. See Moore v. Illinois, 408 US

786, 92 S Ct 2562, 33 L Ed 2d 706 (1972).

@ As has been previously demonstrated, the statute in question ap-

plies only to defendants who have lost (or who will lose) their indigency

status. See p 12-13, infra.

_ 4 Ore eens

21

condition of indigency led to the expenditure in the first

place, the prospect of major recovery of funds is very

small.© Degree of success, however, is not the question;

it is enough that there is a valid state purpose. James v.

Strange, supra, 407 US at 133-134.

Petitioner next raises lack of notice and hearing in

connection with the amount taxed to him as attorney

fees. He argues:

a [A] defendant who is ordered to make

restitution has knowledge of the amount involved

while an indigent who must reimburse the county for

the cost of the defense not only has no idea of what

the cost may be, but is given no opportunity to con-

test the amount of the assessments made in terms of

the value of the services received. When repayment

is made a condition of probation, the indigent may

even be deprived of his liberty without ever having

had a hearing on the reasonableness of the attorney

fees or investigatory costs imposed against him. This

procedure, or lack of it, in petitioner’s opinion, denies

him due process. . .” (Pet Br 14-15)

Such argument confuses the facts and misstates the law.

As to the facts, since the attorney fees to be awarded are

statutory (and minimal), they are specifically known. By

® No figures exist as to the amount of money recovered under this

statute. However, an informal survey by counsel for respondent estab-

lished that the statutory authority is being used in many of Oregon’s 36

counties. Respondent is aware of only one instance in which failure to

perform this condition of probation has resulted in probation revocation,

and even in that case it was combined with more serious transgressions,

i.e., failure to report to the probation officer and failure to notify of

changes of address. In view of the narrow scope of authority to revoke

probation under the statute, see Fuller v. Oregon, supra, 504 P2d at 1397

(A. 13), it would be surprising if there were many such cases. See Kami-

sar & Choper, The Right to Counsel in Minnesota: Some Field Find-

ings and Legal-Policy Observations, 48 Minn L Rev 1, 24 (1963). The

results of the informal survey are tabulated in an Addendum at page 30

of this brief.

22

contrast, it could very well occur that a requirement

that a defendant reimburse a private victim (which con-

dition petitioner seems to consider proper, see Pet Br

13-14) could be very indefinite until some hearing was

held to establish the appropriate amount. This would

be particularly true with respect to personal injuries.

Moreover, a defendant is obviously not foreclosed from

contesting the amount, after it has been set, both by

application to the trial court and on appeal. See

Whitley v. Murphy, 5 Or 328, 333 (1874). Review would

also be available on any hearing concerning default, inas-

much as the element of “intentional, contumacious

default” which must be found at such hearing would

appear to require, at least, a finding that the amount the

probationer was being required to pay was fair and

reasonable. See State v. Fuller, supra, 504 P2d at 1397

(A 12).°

III

THE OREGON RECOUPMENT STATUTES

HAVE NO APPRECIABLE “CHILLING EF-

FECT” ON PETITIONER’S EXERCISE OF

HIS RIGHT TO COUNSEL.

Petitioner’s final attack on the Oregon recoupment

statutes is based on the theory that the mere existence

of the possibility that the statutes will be applied to a

defendant after conviction will somehow “chill” his exer-

® People v. Amor, 35 Cal App 3d 344, 110 Cal Rptr 701 (1973) is

cited by petitioner for the contrary position. The California Supreme

Court granted review of Amor on January 10, 1974, creating a question

as to its precedential value.

f

23

cise of his right to counsel under the Sixth and Four-

teenth Amendments, US Const. Amends. VI and XIV, by

making such exercise costly.

This Court has, on at least two occasions, commented

by way of dicta that imposing a requirement of reim-

bursement to the state for the expense of court-appointed

counsel would be permissible:

“. . We note here also that the state interests

represented by recoupment laws may prove im-

portant ones. Recoupment proceedings may protect

the State from fraudulent concealment of assets and

false assertions of indigency. Many States, moreover,

face expanding criminal dockets, and this Court has

required appointed counsel for indigents in widening

classes of cases and stages of prosecution. Such trends

have heightened the burden on public revenues, and

recoupment laws reflect legislative efforts to recover

some of the added costs. Finally, federal dominance

of the Nation’s major revenue sources has encouraged

State and local governments to seek new methods of

conserving public funds, not only through the recoup-

ment of indigents’ counsel fees but of other forms of

public assistance as well.

“We thus recognize that state recoupment statutes

may betoken legitimate state interests. .. .” (foot-

notes omitted) James v. Strange, supra 407 US at 141.

. . We may assume that a legislature could

validly provide for replenishing a county treasury

from the pockets of those who have —! benefited

from come expenditures. ;

[R]epayment could easily be made a con-

dition of probation or parole,. . .” (footnote omit-

ted) Rinaldi v. Yeager, supra, 384 US at 309-310.

Every one of the possible reasons suggested by this

Court applies with some force to the statutes under

| Ps sa

24

scrutiny here. Recovery of expenditures is one of the

prime motivations for such statutes. They do, however,

serve other ends as well. For example, the ultimate avail-

ability of a fairly thorough examination of a criminal

defendant's financial.circumstances after conviction

makes it possible for the original arraigning magistrate

to proceed rather summarily with a possibly indigent

defendant: when in doubt, the defendant can be given

an attorney; if the defendant has (or thereafter acquires)

funds, the fact will come out.

Yet another consideration is the fact that the recoup-

ment statutes lessen concern for fraudulent representa-

tions of indigency, As long as it is proper to require

repayment when it is found that a convicted defendant

is not, in fact, indigent, little if any concern need be

wasted on consideration of whether or not to seek charges

with respect to executing a false affidavit of indigency.

Proof problems concerning state of mind and intent are

avoided; the criminal justice system avoids the possibility

of yet another case to add to its burden.

Finally, there is the legitimate concern for rehabili-

tation. In Oregon, rehabilitation is the declared goal of

the criminal justice system. Article I, Section 15 of the

Oregon Constitution directs that

“Laws for the punishment of crime shall be founded

on the principles of reformation, and not of vindictive

justice.”

Courts are every day faced with the task of evaluating

the progress of probationers to determine whether or not

the probationers’ conduct indicates that they are taking

PPO NIO LAY NG MOE: Te me

ia a aaa btn teat aloe en at ee

25

their proper place in society as responsible, law-abiding

individuals. A condition of probation which requres re-

payment of funds for court-apponted counsel furthers tais

task, by providing an index of an offender’s willingness

to recognize and take the responsibility for the burden

which his past criminal conduct placed upon others.

Petitioner does not argue that the statutes would not

accomplish the goals set forth above. Rather, he adopts

the absolute position that, because an accused indigent

was aware of the possibility that he might someday be

called upon to repay the cost of his court-appointed attor-

ney, he might forego seeking legal assistance.® In this

contention, petitioner purports to find support in In re

Allen, 71 Cal 2d 388, 78 Cal Rptr 207, 455 P2d 143 (1969),

and in certain decisions of this Court.

In Allen, a condition similar to the one in the present

case had been imposed, although without any specific

statutory authorization and, apparently, without any

statutory limitation as to the attorney fees which could

be awarded. Id., 455 P2d at 146. The California Supreme

Court held that the condition of probation represented a

potential chilling influence on future indigents’ decisions

concerning acceptance of appointed counsel. However,

the basis for this decision was rank speculation:

. . . [W]e believe that as knowledge of this

practice has grown and continues to grow many indi-

gent defendants will come to realize that the judge’s

offer to supply counsel is not the gratuitous offer of

assistance that it might appear to be; that, in the event

~ @ En this case, of course, petitioner was not aware of this possibility.

No “chilling effect” with respect to petitioner exists.

26

the case results in a grant of probation, one of the con-

ditions might well be the reimbursement of the county

for the expense involved. This knowledge is quite

likely to deter or discourage many defendants from ac-

cepting the offer of counsel despite the gravity of the

need for such representation as emphasized by the

Court in Gideon, supra. Although in the instant case

there is no indication in the record that petitioner was

discouraged from exercising her constitutional right

to counsel for, in fact, she requested and received

counsel, neither does the record show that she might

become indebted to the county for the cost of such

service. The fact that such knowledge might have

deterred her, and could well deter others, gives rise

to our concern as to the validity of such a condition

of probation.” Id, 455 P2d at 144.

The assertion upon which the holding is based is ipse

dixit.® It promotes a theoretical possibility to an absolute

constitutional barrier. Respondent respectfully submits

that a “chilling effect” should be made of sterner stuff.

Other “chilling effect” cases relied upon by petitioner

include United States v. Jackson, 390 US 570, 88 S Ct

1209, 20 L Ed 2d 138 (1968) (Federal Kidnapping Act

provision that only jury could impose death penalty held

unconstitutional in part because it required a defendant

to literally risk his life in order to assert his right to a

jury trial); Gardner v. Broderick, 392 US 273, 88 S Ct

1913, 20 L Ed 2d 1082 (1968) (police officer witness

before grand jury investigating alleged corruption in

®@ Scholarly efforts cited by petitioner in support of this position

are equally speculative. See, e.g., A.B.A. Project on Providing Defense

Services, 58-59 (Approved Draft 1968). Other commentators would

find no constitutional difficulties with a properly limited scheme. See

Comment, Reimbursement of Defense Costs as a Condition of Proba-

tion for Indigents, supra, at 1413-1414.

27

police department could not be discharged for refusal to

waive privilege against self-incrimination and sign waiver

of immunity from prosecution); Uniformed Sanitation

Men Assoc. v. Commissioner, 392 US 280, 88 S Ct 1917,

20 L Ed 2d 1089 (1968) (discharge for refusal to sign

waivers of immunity unconstitutional); Griffin v. Cali-

fornia, 380 US 609, 86 S Ct 1229, 14 L Ed 2d 106 (1965)

(permitting trial court and prosecutor to comment on

defendant’s refusal to take stand in own defense violates

right to remain silent by making its exercise costly).

Each of the cases cited involved a specific, near-

Draconian penalty for the exercise of a right. In no case

was the penalty minor or speculative. By contrast, the

present case involves a potential “penalty” of a require-

ment that a non-indigent criminal defendant who has

had the benefit of court-appointed counsel reimburse the

county for the statutory fees the ccunsel receives for

such services. At the time when the services are of-

fered, the defendant is presumably indigent; he is cer-

tainly in need of the services. Even if the chance that

his circumstances may so improve that he will have to

pay for this court-appointed attorney might give him

pause, a defendant will surely opt for the help ke needs,

rather than be frightened into a serious present detriment

by the bare possibility of a future obligation. Moreover,

accepting representation increases his chances of avoid-

ing potential liability for any costs by increasing his

chances of acquittal.

Respondent submits that the facts of the present case

28

place it squarely within the doctrine of this Court’s re-

cent decision in Chaffin v. Stynchcombe, 412 US 17, 93S

Ct 1977, 36 L Ed 2d 714 (1973). In that case, it was held

that permitting a Georgia jury to sentence defendant to

a heavier term of imprisonment on retrial after he had

successfully overturned his first conviction was proper,

and the possibility that such might be the result on retrial

did not create a “chilling effect” either on defendant’s

right to appeal or his right to select a jury trial on retria!.

During a wide-ranging review of relevant precedent, this

Court there spoke to issues and policies which closely

parallel the present case:

‘“‘Petitioner’s final argument is that harsher sen-

tences on retrial are impermissible because, irre-

spective of their causes and even conceding that

vindictiveness plays no discernible role, they have a

‘chilling effect’ on the convicted defendant’s exercise

of his right to challenge his first conviction either by

direct appea! or collateral attack. What we have said

as to [North Carolina v. Pearce, 395 US 711, 89 S Ct

2072, 23 L Ed 2d 656 (1969)] demonstrates that it

provided no foundation for this claim. To the con-

trary, the Court there intimated no doubt about the

constitutional validity of higher sentences in the

absence of vindictiveness despite whatever incidental

deterrent effect they might have on the right to

appeal.” Chaffin v. Stynchcombe, supra, 36 L Ed 2d

at 725.

The Court then went on to quote the opinion of Mr.

Justice Harlan in Crampton v. Ohio, 402 US 183, 91 S Ct

1454, 28 L Ed 2d 711 (1971):

“The crimina! process, like the rest of the legal

system, is replete with situations requiring “the mak-

29

ing of difficult judgments” as to which course to

follow. . . . Although a defendant may have a right,

even of constitutional dimensions, to follow which-

ever course he chooscs, the Constitution does not by

that token always forbid requiring him to choose.

[402 US] at 213, 28 L Ed 2d 711[’]” Chaffin v Stynch-

combe, supra, 36 L Ed 2d at 726.

This Court went on to reject a “chilling effect” claim

with respect to the right to select a jury trial upon retrial,

noting that, “[T]he choice here is subject to considerable

speculation.” Chaffin v. Stynchcombe, supra, 36 L Ed 2d

at 727 n. 12. It is precisely this same element of specula-

tion, respondent urges, which should defeat petitioner’s

argument of “chilling effeci” in the present case.

CONCLUSION

For the reasons stated, it is respectfully submitted

the judgment of the court below should be aff'rmed.

Respectfully submitted,

LEE JOHNSON

Attorney General of Oregon

W. MICHAEL GILLETTE

Solicitor General

100 State Office Building

Salem, OR 97310

Attorneys for Respondent

30

ADDENDUM

APPLICATION OF ORS 161.675—PRELIMINARY SURVEY

Number of

Statute Utilized; Individuals Amount Probation

Repayment a Presently Collected Revoked as

Condition of Making In 1973 Result of Failure

County Probation Payment

Bake No No

Benton Yes 2 $ 275.00 No Yes

Clackamas Yes 13* 9,220.00 Les Ne**

Clatscp No No

Columbia Yes 2 —0— No

Coos No No

Crcok Yes 6 222.99 No

Curry No No

Deschutes Yes a 1,507.95 No

Douglas Yes 0 842.00 No

Gilliam No No

Grant Yes 7 195.00 No

Harney No No

Hood River Yes 2 250.00 No

Jackscn Yes No

Jefferson Yes 1 255.97 No

Josephine Yes 34 105.00 No

Klamath Yes 27 1,699.02 No

Lake No No

Lane No No

Lincoln No No

Linn No No

Malheur Yes 26 5,123.23 No

Marion No No

Morrow No No

Multnomah Yes No

Polk Yes 46 2,259.66 No

Sherman No No

Tillamook Yes 3 255.00 No

Umatilla No No

Union Yes 1 396.05 No

Waliowa No No

Wasco No No

Washington Yes : No

Wheeler No No

Yamhill Yes 50 1,728.90 No

* Number earlier was as high as 56.

** One revocation, based not only on failure to pay but also on addi-

tional factors of failure to make monthly reports and failure to

notify probation officer of current address.

SEL NF LOLI ILI OE IE EELS TE LE ITE IEEE COLO AEG LIES ALES IE IL NE NE REI, SN