State v. Below, 332 P.3d 329

Defendant convicted of murder; sentenced to life with parole possible after 25 years.
At trial defendant had court‑appointed counsel; the court later ordered $18,000 in court‑appointed attorney fees and an $18,000 indigent contribution (total $36,000), plus other assessments and restitution.
The trial court made no findings and the record contained no evidence showing the defendant had present financial resources or a realistic prospect of being able to pay those amounts while serving a lengthy prison term.
Defendant had a documented history of depression, alcohol abuse, underemployment/unemployment, and was 52 at sentencing; an expert testified he had held "several fairly good jobs" long before his current offense but had long struggled to hold steady employment.
Defendant did not preserve the fee objections at trial but raised them on appeal as plain error under ORAP 5.45(1).
The appellate court found the imposition of the attorney fees and indigent contribution to be plain error and exercised its discretion to reverse that portion of the judgment.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court could order court‑appointed attorney fees and indigent contribution	State: record does not show unemployability; past good jobs indicate possible ability to pay	Defendant: record contains no evidence he is or may be able to pay; long prison term and history of underemployment make payment speculative	Reversed: insufficient evidence to find defendant is or may be able to pay; imposition was plain error
Who bears burden of proof on ability to pay	State: implied that lack of contrary evidence supports fee order	Defendant: state bears burden to prove ability to pay; defendant need not prove inability	Court: state bears burden; cannot shift burden to defendant
Standard for appellate review of unpreserved fee error	State: plain error not shown because record allows inference of employability	Defendant: plain error review warranted because error is apparent on record	Court: error of law review; plain error requires legal error apparent on record — standard met here
Whether appellate court should exercise discretion to correct plain error	State: urged deference to trial court	Defendant: error is grave and cannot be cured given lack of evidence	Court: exercised discretion to correct—error grave (large sum, long sentence), policies favor reversal

State v. Pendergrapht, 251 Or App 630 (trial court may not impose fees based on pure speculation)
State v. Kanuch, 231 Or App 20 (trial court erred imposing large attorney fees where no evidence defendant could pay)
State v. Coverstone, 260 Or App 714 (state bears burden to show defendant is or may be able to pay; appellate discretion to correct plain error)
Bacote v. Johnson, 333 Or 28 (question whether evidence suffices to show ability to pay is one of law)
State v. Brown, 310 Or 347 (standards for plain‑error review of unpreserved legal errors)
State v. Ramirez‑Hernandez, 264 Or App 346 (past employability too speculative to support future ability to pay)
State v. Delgado‑Juarez, 263 Or App 706 (imposition of attorney fees was plain error given lengthy sentence and no evidence of resources)
State v. Callentano, 263 Or App 190 (same)
State v. Chavez, 263 Or App 187 (same)
State v. Strong, 262 Or App 585 (same)