COURT OF APPEALS OF VIRGINIA 

Present: Judges Benton, Elder and Senior Judge Cole 

Argued at Richmond, Virginia 

CARLA JEAN OHREE 

 OPINION BY 

v. Record No. 2112-95-2 JUDGE MARVIN F. COLE 

 JANUARY 13, 1998 

COMMONWEALTH OF VIRGINIA 

FROM THE CIRCUIT COURT OF HENRICO COUNTY 

George F. Tidey, Judge 

 David P. Baugh for appellant. 

 Eugene Murphy, Assistant Attorney General 

(James S. Gilmore, III, Attorney General, on 

brief), for appellee. 

 Tried by the court sitting without a jury, appellant, Carla 

Jean Ohree, was convicted of two counts of grand larceny by 

welfare fraud. On appeal, Ohree argues that (1) the 

Commonwealth's recoupment from a convicted defendant of the costs 

incurred in providing a jury trial unconstitutionally burdens the 

defendant's right to a jury trial as provided in the Constitution 

of the United States, (2) the Commonwealth's recoupment from an 

indigent defendant of the costs incurred in providing a jury and 

court-appointed counsel, without a preliminary finding that the 

defendant could or would likely be able to pay the costs, 

violates the Constitution of the United States, (3) Ohree's 

waiver of her right to a jury trial was involuntary because it 

was made solely to avoid the imposition of jury costs, and (4) 

requiring Ohree to pay a clerk's fee, Commonwealth's attorney 

fee, recording fee, courthouse maintenance fee, drug enforcement 
 2 

jurisdiction fee, and a fee for the Criminal Injuries 

Compensation Fund violates the due process and equal protection 

clauses of the Constitution of Virginia. Finding no error, we 

affirm Ohree's convictions. 

 Facts 

 Following Ohree's indictment upon two counts of grand 

larceny by welfare fraud, counsel was appointed to represent her. 

 Before trial, appellant filed a "Motion for Waiver of Jury Fee 

and Court Appointed Attorney Fees for Indigent Defendant." In 

her motion, Ohree alleged that she was indigent, that she was 

"desirous of contesting the charge," but that she was "chilled in 

her decision as to whether to elect trial by judge or trial by 

jury by her inability to pay any fee for a jury should she be 

convicted." The trial court refused to waive the jury and 

court-appointed counsel fees. Ohree objected to the court's 

ruling. 

 At the beginning of Ohree's trial, defense counsel again 

raised his objection regarding the assessment of fees for a jury 

and a court-appointed attorney. After the trial court overruled 

the objection, Ohree pleaded not guilty to both charges. When 

the judge asked Ohree whether she "wish[ed] to be tried by the 

Court or by a jury," defense counsel interjected, "If I might, 

Your Honor, we've already made an objection to that. We're 

agreeing to be tried by the Court." 

 The Commonwealth presented evidence that the Aid to Families 
 3 

of Dependent Children program had overpaid Ohree in the amount of 

$873. The evidence demonstrated that Ohree had also been 

overpaid $879 in food stamps. The judge found Ohree guilty of 

both charges and sentenced her to two jail terms of twelve months 

each. The sentences were suspended upon certain conditions, 

including that Ohree "pay and the Commonwealth recover costs in 

the total amount of $409.00." 

 Two days after the entry of the sentencing order, Ohree 

filed an "Objection to Assessment of Costs and Motion to Set 

Aside." Ohree alleged that she was indigent and without funds to 

pay the costs of $409 as required by the sentencing order. She 

argued that "some of the items listed as 'costs' are not directly 

related to the expense of her prosecution and function as an 

additional punishment in excess of that provided by statute." 

Ohree also filed a "Motion to Stay Imposition of Punishment, 

Costs and Restitution Pending Appeal." The trial court granted 

her motion to stay the imposition of punishment and the payment 

of costs pending the appeal. However, the record contains no 

ruling of the trial court upon Ohree's objection and motion to 

set aside the imposition of $409 in costs. 

 I. 

 Ohree first contends that by requiring her to pay the costs 

of a jury had she elected a jury trial and been convicted, the 

Commonwealth violated her constitutional right to a trial by a 

jury. Ohree, however, elected to waive a trial by jury, and no 
 4 

costs associated with a jury trial were assessed against her.1

 Code § 14.1-195.1 provides in part that "[e]very person 

summoned as a juror in a civil or criminal case shall be entitled 

to thirty dollars for each day of attendance upon the court for 

expenses of travel incident to jury service and other necessary 

and reasonable costs as the court may direct." In criminal cases 

resulting in a conviction, the clerk is directed to "make up a 

statement of all the expenses incident to the prosecution, . . . 

and execution for the amount of such expenses shall be issued and 

proceeded with." Code § 19.2-336. Where a defendant has waived 

a trial by jury at least ten days before trial, but the 

Commonwealth or the court refuses to waive a jury, the expenses 

incident to the prosecution shall not include the cost of the 

jury. See id.

 "If [a] provision ha[s] no other purpose or effect than to 

chill the assertion of constitutional rights by penalizing those 

who choose to exercise them, then it . . . [is] patently 

unconstitutional." United States v. Jackson, 390 U.S. 570, 581 

(1968). However, "not every burden on the exercise of a 

constitutional right, and not every pressure or encouragement to 

waive such a right, is invalid." Doss v. Commonwealth, 23 Va. 

 

 1We assume without deciding that appellant has standing to 

raise this issue. But see Wicks v. City of Charlottesville, 215 

Va. 274, 277-78, 208 S.E.2d 752, 755 (1974) (where defendant 

would reap no personal benefit from a ruling that a portion of an 

ordinance was unconstitutional, he has no standing to challenge 

the statute's validity as to others); Bouldin v. Commonwealth, 4 

Va. App. 166, 169-70, 355 S.E.2d 352, 354 (1987). 
 5 

App. 679, 688, 479 S.E.2d 92, 97 (1996) (quoting Corbitt v. New 

Jersey, 439 U.S. 212, 218 (1978)). For example, "there is no per

se rule against encouraging guilty pleas." Corbitt, 239 U.S. at 

218-19. A legislature, however, cannot needlessly encourage 

waivers. See Jackson, 390 U.S. at 582. "Whatever might be said 

of [the General Assembly's] objectives, they cannot be pursued by 

means that needlessly chill the exercise of basic constitutional 

rights. The question is not whether the chilling effect is 

'incidental' rather than intentional; the question is whether 

that effect is unnecessary and therefore excessive." Id.

(citations omitted). 

 In Wicks v. City of Charlottesville, 215 Va. 274, 208 S.E.2d 

752 (1974), the Supreme Court of Virginia described the purpose 

of the imposition of costs as follows: 

 "[T]he character of the obligation . . . of a 

person convicted of [a] crime to the 

Commonwealth for the costs incident to his 

prosecution and conviction was discussed and 

defined to be an exaction, 'simply for the 

purpose of reimbursing to the public treasury 

the precise amount which the conduct of the 

defendant has rendered it necessary should be 

expended for the vindication of the public 

justice of the State and its violated laws. 

It is money paid, laid out and expended for 

the purpose of repairing the consequences of 

the defendant's wrong.'" 

Wicks, 215 Va. at 278-79, 208 S.E.2d at 756 (quoting Commonwealth 

v. McCue's Ex'rs, 109 Va. 302, 304, 63 S.E. 1066, 1067 (1909)). 

"'Payment of costs is no part of the sentence of the court, and 

constitutes no part of the penalty or punishment prescribed for 
 6 

the offense.'" Williams v. Commonwealth, 5 Va. App. 514, 521, 

365 S.E.2d 340, 344 (1988) (citation omitted). 

 Had Ohree elected a jury trial and been convicted, 

permitting the Commonwealth to seek reimbursement for the expense 

of that jury trial would be a legitimate objective. See Rinaldi 

v. Yeager, 384 U.S. 305, 309 (1966) ("We may assume that [the] 

legislature could validly provide for replenishing . . . [the 

Commonwealth's] treasury from the pockets of those who have 

directly benefitted from [the Commonwealth's] expenditures."). 

Moreover, the objective of the Commonwealth — to reimburse the 

Commonwealth for its costs in providing a jury to a convicted 

defendant — cannot "be achieved without penalizing those 

defendants who . . . demand [a] jury trial." Jackson, 390 U.S. 

at 582. 

 We conclude that the imposition of the cost of providing a 

jury does not impose an excessive or unnecessary burden upon the 

exercise of the right of a jury trial under the United States 

Constitution. See Wicks, 215 Va. at 280, 208 S.E.2d at 757. 

Moreover, the Supreme Court of Virginia has held that a criminal 

defendant's constitutional rights are not violated by including 

in the expenses incident to the prosecution the cost of the jury 

if the defendant exercises his or her right to a jury trial. See

Kincaid v. Commonwealth, 200 Va. 341, 344, 105 S.E.2d 846, 848 

(1958).2 Accordingly, we find no error in the trial court's 

 

 2Despite Ohree's assertion that the Kincaid decision was 

improperly founded upon Anglea v. Commonwealth, 51 Va. (10 
 7 

 

refusal to find that the jury fee was an unconstitutional burden 

upon Ohree's right to a jury trial. 

 II. 

 Ohree argues on appeal that it "violates the equal 

protection clause and is constitutionally impermissible" to 

assess court-related costs against an indigent criminal defendant 

until the defendant's financial situation improves and he or she 

is able to make payment. Ohree's post-sentencing motion and 

objection to the $409 in costs contained no allegation of a 

constitutional violation. Rather, Ohree's motion asserted her 

inability to pay, challenged the costs as not directly related to 

the costs of her prosecution, and argued that the costs 

constituted a punishment in excess of that permitted by statute. 

 Ohree did not argue in the trial court that the recoupment 

procedures permitted by Virginia statutes violated her 

constitutional rights. In fact, the record does not reflect that 

the trial judge made any ruling at all upon Ohree's objection to 

the assessed costs and the motion to set them aside. 

 "No ruling of the trial court . . . will be considered as a 

basis for reversal unless the objection was stated together with 

the grounds therefor at the time of the ruling, except for good 

cause shown or to enable the Court of Appeals to attain the ends 

of justice." Rule 5A:18. 

Gratt.) 696, 701 (1853), this Court is without authority to 

overrule precedent of the Supreme Court. See Minor v. 

Commonwealth, 16 Va. App. 803, 805, 433 S.E.2d 39, 40 (1993). 
 8 

 The main purpose of requiring timely specific 

objections is to afford the trial court an 

opportunity to rule intelligently on the 

issues presented, thus avoiding unnecessary 

appeals and reversals. In addition, a 

specific, contemporaneous objection gives the 

opposing party the opportunity to meet the 

objection at that stage of the proceeding. 

Weidman v. Babcock, 241 Va. 40, 44, 400 S.E.2d 164, 167 (1991) 

(citation omitted). 

 The Court of Appeals will not consider an argument on appeal 

which was not presented to the trial court. See Jacques v. 

Commonwealth, 12 Va. App. 591, 593, 405 S.E.2d 630, 631 (1991) 

(citing Rule 5A:18). Rule 5A:18 applies to bar even 

constitutional claims. See Deal v. Commonwealth, 15 Va. App. 

157, 161, 421 S.E.2d 897, 900 (1992). Therefore, Ohree's 

argument on appeal is barred by Rule 5A:18 because it was not 

raised in the trial court. Furthermore, because the trial court 

never ruled upon Ohree's objection to the imposition of costs and 

her motion to set the costs aside, there is no ruling for us to 

review on appeal. See Fisher v. Commonwealth, 16 Va. App. 447, 

454, 431 S.E.2d 886, 890 (1993). 

 Even on the merits, however, Ohree's claim fails. If 

Virginia's statutory framework regarding the imposition of costs 

is subject to a constitutional construction "[t]he court is under 

a duty to give it that construction." Perkins v.Commonwealth, 12 

Va. App. 7, 14, 402 S.E.2d 229, 233 (1991) (citation omitted). 

In Fuller v. Oregon, 417 U.S. 40 (1974), the Supreme Court of the 

United States upheld the validity of an Oregon statute permitting 
 9 

the recoupment of a court-appointed attorney fee where a 

convicted defendant subsequently acquired the financial ability 

to pay. The Court noted that unlike invalid statutes which 

 "had no other purpose or effect than to chill 

the assertion of constitutional rights by 

penalizing those who choose to exercise 

them," Oregon's recoupment statute merely 

provides that a convicted person who later 

becomes able to pay for his counsel may be 

required to do so. Oregon's legislation is 

tailored to impose an obligation only upon 

those with a foreseeable ability to meet it, 

and to enforce that obligation only against 

those who actually become able to meet it 

without hardship. 

Id. at 54 (citation omitted). 

 In Alexander v. Johnson, 742 F.2d 117, 124 (4th 

Cir. 1984), the United States Court of 

Appeals for the Fourth Circuit set forth the 

"basic features of a constitutionally 

acceptable fees reimbursement 

program . . . ." Under a valid recoupment 

program, the entity deciding whether to 

require repayment must take recognizance of 

the individual's resources, the other demands 

on his own and family's finances, and the 

hardships he or his family will endure if 

repayment is required. The purpose of this 

inquiry is to assure repayment is not 

required as long as he remains indigent. 

Id. (interpreting North Carolina law). 
 10 

 In every criminal case in Virginia, the clerk of the circuit 

court in which the accused is found guilty shall, as soon as 

possible, make up a statement of all the expenses incident to the 

prosecution provided for by statute and executions for the amount 

of such expenses shall be issued and proceeded with. On the day 

of completing the statement, the effect is the same as a judgment 

in the court in favor of the Commonwealth against the accused. 

See Code § 19.2-336. 

 Code § 19.2-354 grants to the trial court the authority to 

order payment of costs in installments or upon other terms and 

conditions, such as community service. If the defendant is 

"unable" to make immediate payment of the costs, the court shall 

order him or her to pay them in deferred payments or 

installments. See Code § 19.2-354(A). 

 In determining whether the defendant is "unable" to make 

immediate payment and whether an installment plan should be 

crafted under Code § 19.2-354(A), the judge "may require such 

defendant to file a petition, under oath, with the court, upon a 

form provided by the court, setting forth the financial condition 

of the defendant." Code § 19.2-355(A). As a part of this 

petition, the defendant shall provide a proposed plan for the 

repayment of costs in installments or upon other conditions. See

Code § 19.2-355(B). 

 Should the defendant later default in his or her obligation 

to make installment or deferred payment of costs, the judge, 
 11 

either upon his or her own motion or upon the motion of the 

prosecuting attorney, may require the defendant "to show cause 

why he should not be confined in jail or fined for nonpayment." 

Code § 19.2-358(A). The defendant is given the opportunity to 

demonstrate that the default was "not attributable to an 

intentional refusal to obey the sentence of the court, or not 

attributable to a failure on his part to make a good faith effort 

to obtain the necessary funds for payment." Code § 19.2-358(B). 

 If it appears that such reasons exist to explain the default, 

"the court may enter an order allowing the defendant additional 

time for payment, reducing the amount due or of each installment, 

or remitting the unpaid portion in whole or in part." Code 

§ 19.2-358(C). 

 Although the trial court has jurisdiction to modify, vacate, 

or suspend its order of final judgment for only twenty-one days 

thereafter, see Rule 1:1, it retains the continuing authority to 

consider matters pertaining to a defendant's payment of costs. 

See Code §§ 19.2-354 and 19.2-358. Sections 19.2-354 and 

19.2-358 contain no time limitation beyond which the trial court 

may not approve or enforce an agreement regarding payment of 

costs. The trial court possesses the implicit authority to 

reconsider and modify, upon its own motion or the motion of one 

of the parties involved, its order concerning the installment or 

deferred payment of costs. Cf. West v. Commonwealth, 16 Va. App. 

679, 685-86, 432 S.E.2d 730, 734 (1993) (where the Commonwealth 
 12 

both noted an interlocutory appeal of a ruling on a motion to 

suppress and asked the trial court to reconsider its decision, 

the trial court retained jurisdiction to reconsider its decision 

even in the absence of express statutory authority permitting the 

Commonwealth to ask for a reconsideration). Therefore, a 

defendant who finds that his or her financial condition has 

prevented or will prevent him or her from complying with a 

deferral or installment plan ordered under Code § 19.2-354 may 

petition the trial court for a modification of its prior order 

embodying that plan. Evidence relevant in the consideration of 

such a petition would include facts regarding the defendant's 

financial position and his or her ability to pay. 

 Consequently, a person convicted of a crime in the 

Commonwealth has ample opportunity to demonstrate that he or she 

should be relieved of the obligation to pay court related costs 

previously assessed. The defendant can establish that he or she 

is "unable" to pay the costs within ten days of sentencing and 

obtain a court approved plan to make deferred or installment 

payments of the costs pursuant to Code § 19.2-354. If that plan 

proves unworkable, the defendant may petition the trial court for 

a modification of the plan. Finally, if the defendant defaults 

in payment and is ordered to show cause pursuant to Code 

§ 19.2-358, he or she has the opportunity to present evidence 

concerning his or her ability to pay and obtain either temporary 

or permanent relief from the obligation to pay costs. Thus, 
 13 

Virginia's statutory scheme works to enforce the duty of paying 

costs "only against those who actually become able to meet [the 

responsibility] without hardship." Fuller, 417 U.S. at 54. 

 The statutory grant of power to the trial court to order 

payment of fines, forfeitures, penalties, restitution and costs 

in deferred payments or installments according to the defendant's 

ability to pay implies that the trial judge will act with sound 

judicial discretion. See Dowell v. Commonwealth, 6 Va. App. 225, 

228, 367 S.E.2d 742, 744 (1988). Imposing sanctions on a 

defendant who fails to pay costs "not attributable to an 

intentional refusal to obey the sentence of the court" or who is 

financially unable "to obtain the necessary funds for payment" 

would be unconstitutional under Fuller. Consequently, imposition 

of any penalty on a defendant by a trial court under these 

conditions would constitute an abuse of discretion. 

 The Virginia Supreme Court has addressed recoupment of 

attorney fees from an indigent defendant. The same principles 

apply to other costs of prosecution. 

 It is entirely proper, and a 

constitutional requisite, that an indigent 

defendant be represented by court-appointed 

counsel. However, we can perceive no valid 

reason why, if the defendant is convicted, 

the cost of such representation should not be 

taxed as a part of the cost of the 

prosecution, treated as any other debt and 

collected of the convicted defendant at a 

later date if and when he becomes able to 

pay. The Code of Virginia abounds with 

statutes providing debtors, judgment and 

otherwise, with exemptions from execution, 

attachment, garnishment and distress. These 

statutes afford equal treatment and are 
 14 

adequate to protect any debtor from hardship, 

and from oppression or overreaching by a 

creditor. They are not discriminatory and do 

not penalize any judgment debtor of the 

Commonwealth. 

Wicks, 215 Va. at 279, 208 S.E.2d at 756-57 (citations omitted). 

 Under the Virginia recoupment statutes, the defendant is 

given the opportunity at any time to demonstrate that any default 

was not attributable to any refusal to make a good faith effort 

to obtain the funds necessary for payment. The trial court may 

allow the defendant additional time for payment, reduce the 

amount of the payments on each installment, or remit the unpaid 

portion in whole or in part. Thus, we find the recoupment 

statutes constitutional and not a violation of the due process or 

equal protection clauses of the United States Constitution. 

 In any event, although Ohree asserted in the trial court 

that she was indigent and counsel was appointed to represent her, 

the record contains no affirmative proof that she was unable to 

pay the costs, in whole or in part, at the time she was 

sentenced. The trial court stayed the requirement of the payment 

of costs pending Ohree's appeal. Accordingly, the record does 

not reflect that Ohree was determined "unable" to pay the costs 

pursuant to Code § 19.2-354, that an installment plan or other 

program was created for her to repay the debt, or that she sought 

relief from or defaulted upon such a plan. With the case in this 

posture, we cannot determine how the statutory scheme for 

recoupment of court-related costs might eventually affect Ohree, 
 15 

much less find the procedure unconstitutional as applied to her. 

 III. 

 Although prior to arraignment Ohree requested that the jury 

fee be waived and contended that the imposition of the jury fee 

"chilled" her decision regarding whether to request a jury, she 

never contended in the trial court, as she does on appeal, that 

her decision to waive a trial by jury was involuntary. 

Therefore, this issue was waived. See Rule 5A:18. 

 Moreover, "[t]he record must indicate that the accused made 

a knowing, intelligent and voluntary waiver of the right to trial 

by jury." Wright v. Commonwealth, 4 Va. App. 303, 306, 357 

S.E.2d 547, 549 (1987). When asked if she wanted to be tried by 

the judge or a jury, Ohree consented specifically to a bench 

trial. As noted above, had Ohree chosen to be tried by a jury, 

the imposition of the cost of a jury would have been lawful. 

Ohree's understanding of the cost of a jury trial and her desire 

to avoid this expense did not constitute coercion rendering her 

waiver of a jury involuntary. Cf. Fuller, 417 U.S. at 53 ("The 

fact that an indigent who accepts state-appointed legal 

representation knows that he might someday be required to repay 

the costs of these services in no way affects his eligibility to 

obtain counsel."). Accordingly, the record reflects a knowing 

and voluntary waiver of Ohree's right to a jury trial. 

 IV. 

 Finally, Ohree argues that requiring her to pay a clerk's 
 16 

fee, Commonwealth's attorney fee, recording fee, courthouse 

maintenance fee, drug enforcement jurisdiction fee, and a fee for 

the Criminal Injuries Compensation Fund violates the equal 

protection and due process clauses of the Constitution of 

Virginia.3

 As described above, in the trial court Ohree 

challenged the imposition of costs solely upon grounds that the 

costs amounted to an additional punishment in excess of that 

provided by statute. She raised no constitutional claim. On 

brief, Ohree concedes that the only issue preserved was whether 

the costs were related to the prosecution. Furthermore, the 

trial court never ruled upon the objection raised in Ohree's 

post-sentencing objection. Thus, this claim, too, is waived. 

See Rule 5A:18. 

 Ohree argues that under Carter v. City of Norfolk, 206 Va. 

872, 147 S.E.2d 139 (1966), any cost imposed upon her must be 

related to the expenses incurred by the Commonwealth in 

prosecuting her. Ohree misconstrues Carter. Addressing Carter's 

reliance upon decisions from other states that required costs to 

be related to the prosecution of the particular defendant 

charged, see id. at 877, 147 S.E.2d at 143, the Supreme Court 

stated: 

 We need not decide whether the Constitution 

of Virginia would require the same result as 

 

 3These fees are authorized by Virginia statutes. See Code 

§ 14.1-112 (clerk's fee), § 14.1-121 (Commonwealth's attorney 

fee), § 14.1-133.2 (courthouse maintenance fee), § 14.1-134.1 

(drug enforcement jurisdiction fee), § 19.2-165 (recording fee), 

and § 19.2-368.18 (Criminal Injuries Compensation Fund). 
 17 

was reached in [cases decided under the 

constitutions of other states] . . . if the 

statutes there involved were before us; nor 

should this opinion be interpreted as 

indicating approval or disapproval of the 

result reached in those cases. 

Id. at 879 n.10, 149 S.E.2d at 144 n.10. The Court declined to 

rule on that issue because it found that the cost Carter 

disputed, a charge for the cost of reporting the conviction to 

the Division of Motor Vehicles, was related to Carter's 

conviction. See id. at 879, 149 S.E.2d at 144. 

 In any event, however, several of the fees challenged by 

Ohree were directly related to her conviction. Ohree complains 

of six fees: a Commonwealth's attorney fee, a clerk's fee, a 

recording fee, a courthouse maintenance fee, a Criminal Injuries 

Compensation Fund fee, and a drug enforcement jurisdiction fee.4

 When ruling on the "relatedness" of the fees charged in Carter, 

the Supreme Court noted that the court clerk was required to send 

Carter's conviction record to the Division of Motor Vehicles and 

that the Commissioner of the Division of Motor Vehicles was 

required to maintain the records once received. See Carter, 206 

Va. at 877-78, 149 S.E.2d at 143. The Court concluded that 

 

 4Code § 14.1-134.1, which authorizes the drug enforcement 

jurisdiction fee, explicitly restricts application of that 

section to defendants convicted of drug-related offenses. See

id. Because no evidence in the record proved that the 

Commonwealth assessed a drug enforcement jurisdiction fee in this 

welfare fraud case, we will not assume that the Commonwealth 

misapplied Code § 14.1-134.1 by charging Ohree for an expense 

under that section. Therefore, we will not address her claim 

regarding the drug enforcement jurisdiction fee. 
 18 

"[t]he record-keeping and reporting expenses of the Division of 

Motor Vehicles [we]re, therefore, directly related to convictions 

for traffic offenses." Id. at 878, 149 S.E.2d at 144. 

 Similarly, we find that the prosecuting expenses of the 

Commonwealth, i.e., the Commonwealth's attorney's fee, the 

clerk's fee, and the recording fee, were directly related to 

Ohree's conviction. Because Ohree was directly affected by the 

services provided by the Commonwealth's attorney, the court 

clerk, and the court reporter who recorded the proceedings, these 

expenses were related to Ohree's prosecution. 

 Ohree argues that the Commonwealth cannot assess a fee for 

services mandated by the Constitution, such as a Commonwealth's 

attorney fee, the clerk's fee, and the recording fee. In Carter, 

the Supreme Court dismissed the argument "that costs cannot 

include items falling within the category of general expenses of 

the administration of justice," id. at 876 n.3, 149 S.E.2d at 142 

n.3, finding no Virginia authority to support that position. See

id. at 876, 149 S.E.2d at 142. The Court noted "that the 

Constitution of Virginia does not prohibit the assessment of jury 

costs against a convicted defendant." Id. at 876 n.3, 149 S.E.2d 

at 142 n.3 (citing Kincaid, 200 Va. at 344, 105 S.E.2d at 848). 

The Court rejected Carter's claim that the Commonwealth was 

without authority to assess fees for the Commonwealth's attorney 

and the clerk. See id. at 879, 149 S.E.2d at 144. We are bound 

by the prior ruling of the Virginia Supreme Court. 
 19 

 In attacking the fee for the Criminal Injuries Compensation 

Fund (the Fund), Ohree argues that because the trial judge 

ordered her to pay restitution, no other compensation was due to 

the Commonwealth. We disagree. The Fund was created to provide 

"aid, care and support" to "innocent persons [who] suffer 

personal physical injury or death as a result of criminal acts." 

 Code § 19.2-368.1. Although Ohree was convicted of no crime 

committed against an individual, the Commonwealth and its 

citizens were injured by her commission of two counts of welfare 

fraud. 

 Likewise, the General Assembly's purpose in charging a fee 

for courthouse maintenance was presumably to seek reimbursement 

for Ohree's use of the courthouse. An individual convicted of a 

crime against the Commonwealth can be said to have caused the 

Commonwealth to incur the expense of the prosecution of that 

individual. Therefore, the imposition of the courthouse 

maintenance fee upon Ohree, who was convicted of a crime, 

furthered the legislature's goal of reimbursement, and the fee 

was validly applied to Ohree. 

 For the foregoing reasons, we affirm appellant's 

convictions. 

 Affirmed. 
 20 

Benton, J., concurring and dissenting. 

 Because I believe the statutes relating to jury costs and 

attorney fees fail to require consideration of an indigent's 

ability to pay, thus violating the equal protection clause of the 

Fourteenth Amendment, I dissent from Part II of the opinion. I 

also disagree with the majority's assertion in Part III that 

Ohree failed to argue in the trial court that her consent to a 

jury trial was involuntary. For these reasons, I would reverse 

Ohree's convictions and remand the case to the trial judge for 

further proceedings. 

 Although I concur in Part I of the opinion, I believe it is 

important to note that Ohree's first contention is not based upon 

her indigency. She initially contends that the statute which 

imposes the costs of providing a jury trial upon every convicted 

defendant unconstitutionally burdens a defendant's right to a 

jury trial as provided in the United States Constitution. 

Although I disagree with the Commonwealth's contention that Ohree 

lacks standing to raise this issue and I would hold that she 

does, I otherwise concur in Part I of the majority opinion. 

 A. 

 I disagree with the majority's holding that Ohree waived her 

argument that assessing court-related costs against an indigent 

criminal defendant violates the equal protection clause. After 

her indictment, Ohree was found to be indigent. Ohree's 

court-appointed counsel filed a pretrial motion seeking a waiver 
 21 

of the fees for a jury and court-appointed attorney. The trial 

judge issued an opinion letter in which he denied the motion. At 

a later hearing, on June 13, Ohree's counsel stated, "I filed a 

motion asking the Court to waive Court appointed fees and to 

waive jury fees, because she is an indigent person. We question 

the constitutionality of requiring a defendant once convicted to 

pay those costs." (Emphasis added). Ohree's counsel filed an 

objection to the trial judge's ruling that denied the motion to 

waive jury and counsel fees. At the June 22 hearing, Ohree's 

counsel again argued that the imposition of jury and counsel fees 

was unconstitutional. The trial judge noted that he had already 

overruled the objection. 

 The majority correctly notes that Ohree's post-sentencing 

motion and objection to the assessed costs did not allege a 

constitutional violation and that the trial judge did not rule on 

this motion. However, Ohree made several pretrial motions 

objecting to the assessment of jury costs based on constitutional 

grounds and each was overruled by the trial judge. The trial 

judge had adequate notice of Ohree's constitutional objection to 

application of the statute to her because she was indigent. 

Therefore, I would hold that Ohree did not waive her 

constitutional arguments and that we are not barred by Rule 5A:18 

from considering the issue on appeal. 

 B. 

 I would also hold that Virginia's statutory scheme for the 
 22 

imposition of the costs of providing a jury and court-appointed 

attorney violates the Fourteenth Amendment because it fails to 

give adequate consideration to the defendant's ability to pay and 

expressly authorizes the imposition of the obligation to repay 

upon certain indigent defendants. 

 While the Oregon statute at issue in Fuller v. Oregon stated 

that "'[t]he court may require a convicted defendant to pay 

costs,'" 417 U.S. 40, 43 n.5 (1974) (citation omitted), the 

statute imposed the following limitation: 

 "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." 

Id. (citation omitted). 

 In construing the statute, the Supreme Court emphasized that 

"the requirement of repayment 'is never mandatory.'" Id. at 44 

(citation omitted). The Court noted that "before a person may be 

required to repay the costs of his legal defense," the judge must 

consider the defendant's financial resources and the burden the 

obligation will impose upon the defendant. Id. at 45. A judge 

cannot order the defendant to pay the costs unless the defendant 

"'is or will be able to pay them.'" Id. (citation omitted). 

Thus, the Court concluded that under the Oregon statute, 

"[d]efendants with no likelihood of having the means to repay are 

not put under even a conditional obligation to do so." Id. at 
 23 

46. Finally, the Court emphasized that a person who is initially 

ordered to pay the costs can petition the judge for remission of 

the costs. See id. at 45. The judge may forgive the obligation 

if "payment 'will impose manifest hardship on the defendant or 

[the defendant's] immediate family.'" Id. at 45-46 (citation 

omitted). 

 The Fourth Circuit applied Fuller in interpreting a North 

Carolina statutory recoupment scheme. See Alexander v. Johnson, 

742 F.2d 117 (4th Cir. 1984). In Alexander, the Court upheld the 

statute because it required the trial judge to consider the 

convicted defendant's resources when deciding whether to require 

repayment. See id. at 124-26; see also Olson v. James, 603 F.2d 

150, 155 (10th Cir. 1979) (stating that the Kansas statute was 

inadequate in part due to "its lack of proceedings which would 

determine the financial condition of the accused and perhaps test 

the excessiveness of the attorney's fee"); cf. United States v. 

Glover, 588 F.2d 876, 878-79 (2d Cir. 1978) (holding that because 

the trial court has discretion to determine whether to impose 

costs and because "the defendant's ability to pay will . . . be a 

paramount factor . . . , [the statute] does not impinge upon the 

right to stand trial"). But see United States v. Chavez, 627 

F.2d 953, 957-58 (9th Cir. 1980) (holding that a statute 

requiring imposition of costs even upon indigents was 

constitutionally valid). 

 Virginia's statutory scheme, however, fails to meet the 
 24 

requirements of Fuller as explicated in Alexander. First, in 

Virginia, trial judges are required to impose an obligation to 

repay costs on every convicted defendant. Under Code § 19.2-336, 

the clerk of court is required to issue a statement of expenses. 

 The statute further states that "execution for the amount of 

such expenses shall be issued and proceeded with." Id. (emphasis 

added). Thus, when the trial judge initially imposes the 

repayment requirement, the judge must do so without regard to the 

defendant's financial resources. 

 Even under Code §§ 19.2-354 and 19.2-355, which allow the 

trial judge to consider the defendant's resources when deciding 

whether to require immediate payment, the defendant must 

ultimately be required to pay. Under those provisions, a 

defendant's indigence would only allow the defendant additional 

time to fulfill the obligation. In addition, the trial judge 

"shall forthwith suspend the person's privilege to drive a motor 

vehicle." Code § 46.2-395. Thus, unlike the statutes in Fuller

and Alexander, the Virginia scheme automatically and mandatorily 

imposes on every convicted, indigent defendant the obligation to 

repay the expenses of prosecution, including the costs of 

providing a jury and a court-appointed attorney. 

 The majority asserts that the Virginia statutes are 

constitutional because under the recoupment statutes, the trial 

judge may allow the defendant additional time for payment, reduce 

the amount of payment, or remit the unpaid portion in whole or in 
 25 

part. However, unlike the statute in Fuller, the Virginia 

statutes do not allow a person who is initially ordered to pay 

costs to petition for remission of the costs. Nor do the 

statutes allow the judge to forgive the obligation in its 

entirety if it would impose "manifest hardship upon the 

defendant." 

 The only statute that allows the trial judge to remit the 

unpaid portion of the amount due is Code § 19.2-358. Under this 

statute, the trial judge may initiate a show cause proceeding to 

determine whether to enforce the defendant's obligation. The 

inquiry the judge must make does not specifically mandate 

consideration of the defendant's ability to pay. Thus, Code 

§ 19.2-358 is inadequate under Fuller because it does not suggest 

to the judge that a factor to consider is the defendant's ability 

to pay. Because the statute provides standards to apply, the 

exclusion of any suggestion that the judge consider the 

defendant's resources is even more damaging. 

 This initial defect is further exacerbated because the 

statute essentially imposes an obligation on the defendant to 

show that the defendant made an effort to obtain the funds. 

Indeed, if the defendant fails to do so, the trial judge "may" 

order the defendant confined. See Code § 19.2-358. Although the 

decision to jail the defendant is discretionary, the trial judge 

is barred from ordering the defendant imprisoned only if the 

defendant can show that the defendant did not intentionally 
 26 

refuse to pay and that the defendant made a good faith effort to 

obtain the funds. See id.

 By requiring the defendant to show that he or she made a 

good faith effort to obtain funds to pay the costs, Code 

§ 19.2-358 expressly authorizes trial judges to enforce the 

obligation to pay against some indigent defendants. That is, an 

indigent defendant who cannot prove a satisfactory effort to 

obtain the funds can be jailed under Code § 19.2-358. Thus, a 

defendant's indigence is not enough, alone, to excuse him from 

the obligation to repay.5

 The majority's reliance on Wicks v. City of Charlottesville, 

215 Va. 274, 208 S.E.2d 752 (1974), is misplaced. The applicable 

recoupment provision in effect at that time provided, in 

pertinent part, as follows: 

 If the defendant is convicted, the amount 

 

 5Although the enforcement provisions contained in the scheme 

upheld in Fuller are similar in some respects, the important 

distinction is that, in Fuller, the contempt tests were applied 

only to defendants who initially were found able to pay. See 417 

U.S. at 43 n.5. Thus, the non-indigent Fuller defendant was 

required to show that, even though the defendant initially had 

the financial ability to make the payment, the defendant's 

failure to pay was not caused by the defendant's failure to make 

a good faith effort to make the payment. See id. In Virginia, 

an indigent defendant is not similarly exempt and may be required 

to prove a good faith effort to obtain the funds. Applying the 

good faith test to an indigent requires the indigent to obtain 

funds the indigent never possessed, an obligation that did not 

exist under the statute in Fuller. 

 Moreover, even if the trial judge finds that a defendant's 

"default is excusable," the trial judge may still order the 

defendant to pay on modified terms. Code § 19.2-358(C). Thus, 

the statute contains no mandatory requirement that an indigent 

defendant shall be allowed to forego repayment. Cf. Fuller, 417 

U.S. at 45-46. 
 27 

allowed by the court to the attorney 

appointed to defend him shall be taxed 

against the defendant as part of the costs of 

prosecution . . . . An abstract of such 

costs shall be docketed in the judgment 

docket and execution lien book maintained by 

such court. 

Code § 18.4-184.1 (1973). The obligation imposed on the 

defendant was in the nature of a civil judgment, enforceable 

through execution. See Wicks, 215 Va. at 279, 208 S.E.2d at 

756-57; Code § 18.4-184.1 (1973); State v. Albert, 899 P.2d 103, 

110-11 (Alaska 1995) (discussing the statute in Wicks and stating 

that "[t]he amount so taxed was docketed as a judgment"). Unlike 

the statute discussed in Wicks, the current recoupment scheme 

does not treat indigent defendants just like other judgment 

debtors. Code § 19.2-336, and the sections of Chapter 21 to 

which it refers, provide for contempt proceedings that may result 

in imprisonment of the defendant, revocation of the suspension of 

the defendant's sentence, and suspension of the defendant's 

driver's license. Therefore, the holding in Wicks does not apply 

to the current recoupment scheme. See Albert, 899 P.2d at 109-11 

(emphasizing the distinction between a system that merely "treats 

recoupment judgment debtors like other civil judgment debtors" 

and those that "give rise to contempt proceedings" or operate as 

a condition of probation). 

 Therefore, I would hold that Virginia's statutory scheme 

unconstitutionally imposes the costs of a jury trial and 

court-appointed attorney upon indigent defendants, without any 
 28 

preliminary consideration of their ability to pay, in violation 

of the Fourteenth Amendment of the United States Constitution. 

 C. 

 I would also hold that Ohree preserved for appeal the issue 

whether she voluntarily waived a jury trial. Prior to trial, 

Ohree filed a motion for waiver of jury fees and court-appointed 

attorney fees. In the motion, she argued "[t]hat to require the 

defendant to pay a fee for a jury or counsel, in the event she is 

convicted, has a coercive effect on the exercising of her right 

to trial by jury." After the trial judge denied her motion, 

Ohree objected to that ruling, stating that her reasons for the 

objection included "the chilling effect on her decision to 

exercise the right to jury." In the June 13 hearing, defense 

counsel stated that Ohree originally was going to ask for a jury 

trial in this case but because of the judge's ruling on the issue 

of waiver of the jury fee, "[s]he can't afford a jury. . . . 

Lack of money is the problem." At the June 22 hearing, defense 

counsel reiterated that "the requirement of a defendant to pay 

for a jury upon conviction . . . has a chilling effect and as 

such any waiver of jury would not be valid." The trial judge 

noted that he had already overruled these objections. 

 At the beginning of Ohree's trial, defense counsel again 

objected to the assessment of fees for a jury and a 

court-appointed attorney. After the trial judge overruled the 

objection, Ohree pleaded not guilty to both charges. When the 
 29 

judge asked Ohree whether she "wish[ed] to be tried by the Court 

or by a jury," defense counsel interjected, "If I might, Your 

Honor, we've already made an objection to that. We're agreeing 

to be tried by the Court." 

 The trial judge had adequate notice of Ohree's position that 

the trial judge's denial of waiver of jury fees had a "chilling" 

and "coercive" effect on her decision to waive trial by jury. 

Therefore, I would hold that Ohree did not waive her argument 

that she involuntarily waived her right to a jury trial, and we 

are not barred by Rule 5A:18 from considering the issue on 

appeal. 

 D. 

 "Waivers of constitutional rights . . . must be voluntary 

[,] knowing, [and] intelligent acts done with sufficient 

awareness of the relevant circumstances and likely consequences." 

Brady v. United States, 397 U.S. 742, 748 (1970). On brief, 

Ohree concedes that her waiver was knowing and intelligent. 

However, she argues that the waiver of a jury trial was not 

voluntary or "free from coercion." She also relies upon the 

principle that "the record must indicate that the accused made a 

knowing, intelligent and voluntary waiver of the right to trial 

by jury." Wright v. Commonwealth, 4 Va. App. 303, 306, 357 

S.E.2d 547, 549 (1987). 

 The record shows that, initially, Ohree had planned to 

request a jury trial. However, once the trial judge overruled 
 30 

defense counsel's motions to waive the assessment of fees based 

on Ohree's indigence, Ohree agreed to a bench trial. Ohree notes 

in her brief that her decision was "compelled by poverty." 

Clearly, the record establishes that Ohree waived her right to a 

jury trial solely because of her inability to pay the costs of a 

jury if she was found guilty. If the trial judge had ruled in 

Ohree's favor on her motions to waive jury fees, she would not 

have waived her right to a jury trial. Because we must review 

Ohree's waiver of her constitutional right to a jury trial with a 

presumption against such waiver, see Johnson v. Zerbst, 304 U.S. 

458, 463 (1938); Sisk v. Commonwealth, 3 Va. App. 459, 462, 350 

S.E.2d 676, 678 (1986), I would hold that the evidence did not 

overcome this presumption and was insufficient to show that she 

voluntarily waived her right to a jury trial. 

 E. 

 The majority suggests in dicta that the various statutes may 

be rendered constitutional by reading into them a prohibition 

against a trial judge imposing sanctions if an indigent defendant 

is still indigent when the trial is concluded and the costs 

remain unpaid. However, no such prohibition existed when the 

trial judge denied Ohree's motion. Ohree was required to elect 

whether to seek a jury trial after she had been informed that if 

she was convicted she would be required to pay the cost of the 

jury. Thus, this is not a case where the "statute is carefully 

designed to insure that only those who actually become capable of 
 31 

repaying the State will ever be obliged to do so." Fuller, 417 

U.S. at 53 (footnote omitted). Ohree's decision was made in the 

context of knowing that she would be required to pay substantial 

costs if she was convicted. Under those circumstances, her 

waiver of a jury was obtained through a species of coercion that 

rendered her choice involuntary. 

 For these reasons, I would reverse Ohree's convictions and 

remand to the trial judge for a determination of Ohree's ability 

to pay jury and attorney fees. If the judge finds that Ohree is 

unable to pay and is not likely to be able to pay in the future, 

the judge should grant Ohree's motions because the statutes 

authorizing the imposition of those costs are unconstitutional as 

applied to defendants who are unable to pay. The trial judge 

then must allow Ohree to re-elect trial by judge or jury and hold 

a new trial. If the trial judge finds that Ohree is able to pay, 

Ohree's motions should be denied but she should be permitted to 

re-elect trial by judge or jury after being notified that should 

she later be unable to pay the costs, she will not be required to 

do so. 

 I dissent.