622 N.E.2d 402 | Ohio Ct. App. | 1993
The defendant-appellant, Thomas McLean, appeals from his conviction for aggravated assault. In his single assignment of error he contends that the *394
sentencing court's order requiring him to repay his court-appointed attorney fees as a condition of probation was improper for two reasons: (1) it violated the
McLean was indicted for felonious assault. He negotiated a plea agreement with the state and entered a guilty plea to a reduced charge of aggravated assault. The trial court suspended the one-and-one-half-year definite term of imprisonment and ordered McLean to serve a two-year period of probation. In addition to the general conditions of probation pursuant to R.C.
In the first branch of his assignment of error, McLean challenges the trial court's order to repay his court-appointed attorney fees as a condition of probation, arguing that it has a chilling effect on the right to counsel in violation of the
Although the prosecutor and McLean do not cite R.C.
"Where the person represented has, or may reasonably be expected to have, the means to meet some part of the cost of the services rendered to him, he shall *395 reimburse the state public defender in an amount which he can reasonably be expected to pay."
As provided in R.C.
An additional safeguard that prevents a sentencing judge's imposition of a repayment condition from giving rise to any constitutional violation is that revocation of probation for nonpayment of fees is effectively limited by operation of law despite the silence of R.C.
In this appeal, the sentencing judge's findings pose the final, insurmountable barrier to the success of McLean's argument on the first issue he raises in his assignment of error. Pursuant to R.C.
"Well, the probation department report tells me that he's working, has been working as a temporary laborer at $4.25 an hour for the last two months. So I don't find that he's indigent at this time."
McLean presented nothing below to challenge the trial judge's timely redetermination of his indigency.1 Because he has also failed to raise the issue on appeal, and because the trial court's finding is not contradicted by the record, his claim of a
In the second branch of his assignment of error, McLean contends that the trial court imposed a condition of probation beyond the scope of R.C.
"In the interests of doing justice, rehabilitating the offender, and ensuring his good behavior, the court may imposeadditional requirements on the offender, including, but notlimited to, requiring the offender to make restitution for all or part of the property damage that is caused by his offense and for all or part of the value of the property that is the subject of any theft offense * * *." (Emphasis added.)
This section grants broad discretion to the trial court to consider and impose any conditions that may be said reasonably to relate to the stated statutory ends. State v. Jones (1990),
"In determining whether a condition of probation is related to the `interests of doing justice, rehabilitating the offender, and insuring his good behavior,' courts should consider whether the condition (1) is reasonably related to rehabilitating the offender (2) has some relationship to the crime of which the offender was convicted, and (3) relates to conduct which is criminal or reasonably related to future criminality and serves the statutory ends of probation."
A convicted defendant's repayment of attorney fees for court-appointed counsel fits within this three-part test. The need for court-appointed counsel relates directly to the convicted defendant's underlying crime, and as some have suggested, the acceptance of responsibility for the full consequences of the crime and the experience of economic independence created by repayment, enhance the probationer's self-esteem in the community and contribute to his rehabilitation. See State v. Rogers (Iowa 1977),
Courts have nullified a condition of probation as failing to satisfy the three-part test, when it involves a flagrant violation of a probationer's
The underlying policy which relates to the trial court's condition of probation in this case suggests that the scope of probation and its uses, perhaps, should be even broader. The current trend is an appeal by government officials and the public alike for trial judges to employ innovative sentences in light of the cost of incarceration and the crisis of overcrowded jails and prisons.2 Although Ohio's guidelines for probation in R.C.
We conclude that the second branch of the assignment of error is fatuous and reject it.
For these reasons McLean's assignment of error is overruled, and the trial court's judgment of conviction is affirmed.
Judgment affirmed.
KLUSMEIER, P.J., and HILDEBRANDT, J., concur.