                                              COURT OF APPEALS OF VIRGINIA


              Present: Chief Judge Felton, Judges Elder and Petty
UNPUBLISHED


              Argued at Richmond, Virginia


              TYRONE TYREE ROADS
                                                                             MEMORANDUM OPINION * BY
              v.      Record No. 2513-11-2                               CHIEF JUDGE WALTER S. FELTON, JR.
                                                                                   MARCH 26, 2013
              COMMONWEALTH OF VIRGINIA


                                 FROM THE CIRCUIT COURT OF CUMBERLAND COUNTY
                                               Leslie M. Osborn, Judge

                                Jessica M. Bulos, Assistant Capital Defender (Douglas Wham,
                                Acting Capital Defender; Stephanie S. Miller, Assistant Capital
                                Defender; S. Neil Stout; Office of the Capital Defender, on brief), for
                                appellant.

                                Steven A. Witmer, Senior Assistant Attorney General (Kenneth T.
                                Cuccinelli, II, Attorney General, on brief), for appellee.


                      Tyrone Tyree Roads (“appellant”) appeals the sentencing order of the Circuit Court of

              Cumberland County (“trial court”) requiring him to pay court costs pursuant to Code §§ 19.2-336

              and 19.2-358. Appellant asserts the trial court erred by denying his post-trial motion to include a

              provision in the sentencing order requiring him to pay court costs only after first determining his

              financial ability to pay. He contends that the Virginia recoupment statutes violate his right to due

              process because they place the burden of proof on him to show that he is unable to pay court costs,

              as opposed to placing the burden on the Commonwealth to show he is able to pay. He asserts the

              Virginia recoupment statutes violate his right to equal protection because they do not require that

              the trial court project his future ability to pay court costs before imposing the duty.




                      *
                          Pursuant to Code § 17.1-413, this opinion is not designated for publication.
                                         I. BACKGROUND

        Appellant was charged with three counts of capital murder, in violation of Code

§ 18.2-31(4). He pled guilty to two counts of first-degree murder, in violation of Code § 18.2-32.

On August 30, 2011, the trial court held a sentencing hearing regarding appellant’s two convictions

of first-degree murder, but did not enter an order reflecting its rulings at that time. On October 26,

2011, appellant filed a motion requesting that the sentencing order include a provision stating that

appellant would be required to pay the court costs only after first determining that he had the

financial ability to pay. At a hearing on December 7, 2011, the trial court orally denied appellant’s

motion. On that same day, the trial court entered an order reflecting its rulings from the August 30,

2011 sentencing hearing, including that appellant pay the court costs attributable to his trial. The

December 7, 2011 order did not expressly address appellant’s motion that the sentencing order

include a provision stating that appellant would be required to pay the court costs only upon a

determination that he had the financial ability to pay. On January 12, 2012, the trial court entered an

order denying appellant’s motion.1

                                           II. ANALYSIS

        Appellant asserts that Code §§ 19.2-336 and 19.2-358 violate his right to due process

because they place the burden of proof on him to show that he is unable to pay court costs, as

opposed to placing the burden on the Commonwealth to show he is able to pay. He asserts the




        1
         “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.” Ohree v. Commonwealth, 26
Va. App. 299, 310, 494 S.E.2d 484, 490 (1998).

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Virginia recoupment statutes violate his right to equal protection because they do not require that

the trial court project his future ability to pay court costs before imposing the duty. 2

        The Commonwealth asserts that appellant’s arguments were previously decided and rejected

by this Court in Ohree, 26 Va. App. 299, 494 S.E.2d 484, and that Virginia’s recoupment statutes do

not violate appellant’s constitutional right to equal protection and due process.

        Whether Virginia’s recoupment statutes are constitutional presents a question of law that

this Court reviews de novo. See Kozmina v. Commonwealth, 281 Va. 347, 349, 706 S.E.2d 860,

862 (2011). “‘When the constitutionality of an act is challenged, a heavy burden of proof is thrust

        2
            Code § 19.2-336 provides, in pertinent part:

                  In every criminal case the clerk of the circuit court in which the
                  accused is found guilty or is placed on probation during deferral of
                  the proceedings . . . shall, as soon as may be, make up a statement of
                  all the expenses incident to the prosecution, including such as are
                  certified under [Code] § 19.2-335, and execution for the amount of
                  such expenses shall be issued and proceeded with.

        Code § 19.2-358 provides, in pertinent part,

                  A. When an individual obligated to pay a fine, costs, forfeiture,
                  restitution or penalty defaults in the payment or any installment
                  payment, the court upon the motion of the Commonwealth in the
                  case of a conviction of a violation of a state law, . . . or upon its
                  own motion, may require him to show cause why he should not be
                  confined in jail or fined for nonpayment. . . .
                  B. Following the order to show cause . . . , unless the defendant
                  shows that his 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, or unless the defendant shows that any failure to
                  appear was not attributable to an intentional refusal to obey the
                  order of the court, the court may order the defendant confined as
                  for a contempt for a term not to exceed sixty days or impose a fine
                  not to exceed $500. . . .
                  C. If it appears that the default is excusable under the standards set
                  forth in subsection B hereof, 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.
                                                   -3-
upon the party making the challenge. All laws are presumed to be constitutional and this

presumption is one of the strongest known to the law.’” Moses v. Commonwealth, 27 Va. App.

293, 299, 498 S.E.2d 451, 454 (1998) (quoting Harrison v. Day, 200 Va. 764, 770, 107 S.E.2d 594,

598 (1959)).

       The defendant in Ohree was convicted of two counts of grand larceny by welfare fraud.

Ohree, 26 Va. App. at 302, 494 S.E.2d at 486. Upon conviction, the trial court ordered that

Ohree pay costs in the amount of $409. On appeal, Ohree asserted that the “Commonwealth’s

recoupment from an indigent defendant of the costs incurred” during prosecution, “without a

preliminary finding that the defendant could or would likely be able to pay the costs, violate[d]

the Constitution of the United States.” Id. at 303, 494 S.E.2d at 486.

       This Court held that Ohree’s post-sentencing motion and objection to the $409 in costs

contained no assertion of a constitutional violation and that her argument on appeal was barred

by Rule 5A:18 because it was not raised in the trial court. However, the Court further held that

“[e]ven on the merits, . . . Ohree’s claim fails.” Id. at 308, 494 S.E.2d at 489. The Court

explained that “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.’” Id. at

311, 494 S.E.2d at 490 (quoting Fuller v. Oregon, 417 U.S. 40, 54 (1991)). It found that, under

Virginia’s recoupment statutes, “[t]he 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.” Id. (emphasis added). This Court stated that:

               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

                                                -4-
               payments on each installment, or remit the unpaid portion in whole
               or in part.

Id. at 312, 494 S.E.2d at 491. Accordingly, this Court concluded that Virginia’s “recoupment

statutes [are] constitutional and not a violation of the due process or equal protection clauses of

the United States Constitution.” Id.

       Appellant asserts that, because this Court decided the issue in Ohree on the grounds that

Ohree failed to preserve her assignment of error pursuant to Rule 5A:18, the portion of the

opinion addressing the merits of Ohree’s argument was merely dicta. See Newman v. Newman,

42 Va. App. 557, 565, 593 S.E.2d 533, 537 (2004) (en banc) (dicta “generally refers to that

portion of an opinion ‘not essential’ to the disposition in the case” (quoting Cent. Green Co. v.

United States, 531 U.S. 425, 431 (2001))).

       Even assuming, without deciding, that the holding in Ohree was dicta, we hold that this

Court’s reasoning in Ohree was correct and that appellant has not shown how Virginia’s

recoupment statutes violate either the equal protection or due process clauses of the

Constitution. 3 Although the trial court ordered appellant to pay his court costs after his release

from prison, the penalties appellant fears will be imposed if he does not repay cannot be imposed

absent “an intentional refusal to obey the sentence” or a “failure on his part to make a good faith

effort to obtain the necessary funds.” Code § 19.2-358(B). Further, “[i]f it appears that the

default is excusable . . . , 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). These statutory provisions suffice to ensure that




       3
         “‘In assessing the constitutionality of a statute . . . [t]he burden is on the challenger to
prove the alleged constitutional defect.’” Woolfolk v. Commonwealth, 18 Va. App. 840, 848,
447 S.E.2d 530, 534 (1994) (quoting Perkins v. Commonwealth, 12 Va. App. 7, 14, 402 S.E.2d
229, 233 (1991)).
                                                 -5-
appellant will not be subject to enhanced punishment solely due to his future indigence, should it

occur. Accordingly, we affirm the judgment of the trial court.

                                                                                        Affirmed.




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