Appeal from Circuit Court, Multnomah County. Alfred T. Sulmonetti, Judge. No. C-72-05-1685 Cr.
J. Marvin Kuhn, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
John W. Osburn, Solicitor General, Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Attorney General, Salem.
Schwab, Chief Judge, and Foley, Judge. Fort, Judge, dissenting.
The sole question in this appeal which merits discussion is whether a sentencing court has authority to include among the conditions of probation the requirement that a defendant repay attorney fees and investigator fees that the county expended on his behalf because he was indigent at the time of trial. Such a sentence is authorized by ORS 161.665, 161.675 and 161.685,*fn1 enacted by the legislature in 1971. Oregon
Laws 1971, ch 743, §§ 80, 81 and 82, p 1899. Relying on James v. Strange, 407 U.S. 128, 92 S Ct 2027, 32 L Ed
2d 600 (1972), defendant argues it is unconstitutional to require repayment of such fees as part of a sentence.
The Supreme Court in James v. Strange, supra, held a Kansas statute providing for recoupment of attorney fees from indigent defendants violated the Equal Protection Clause of the Fourteenth Amendment to the United States Constitution. However, the sole basis for this holding was that the Kansas law did not allow indigent defendants ordered to pay such fees all of the exemptions from execution provided for other judgment debtors. The court did not hold that a statutory scheme for recoupment of attorney fees
on its face violated the Equal Protection Clause. Neither did it find such statutes on their face impaired a defendant's Sixth Amendment right to counsel.
ORS 161.665(1) and 161.665(3) read together authorize a sentencing court to require a convicted defendant to repay certain costs if he is or will be able to pay them. A sentence requiring repayment of costs is never mandatory. Normally, the judgment for costs is docketed as a judgment in a civil action and enforced in the same manner as a civil judgment. ORS 137.180;*fn2 ORS 137.450;*fn3 ORS 161.685(6). Alternatively, ORS 161.675(2) provides that when a defendant sentenced to repay costs is also placed on probation the court may make repayment of the costs a condition of probation. In this case defendant received the sentence authorized by ORS 161.675(2). His contention that such a sentence is invalid presents three issues.
(1) Are fees of appointed defense attorneys and investigators "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 possible imprisonment under certain circumstances for nonpayment ...