State v. Coverstone
260 Or. App. 714
Or. Ct. App.2014Background
- Armstrong appeals judgments convicting him of multiple counts of sodomy and sexual abuse.
- He challenges a trial court order forcing payment of $8,000 in court-appointed attorney fees without evidence of his ability to pay.
- Defendant acknowledges the error is unpreserved but seeks plain-error or, alternatively, plain-error review under ORAP 5.45(1).
- Statutes ORS 151.505(4) and ORS 161.665(4) limit fee imposition to cases where the defendant is or may be able to pay, with the state bearing the burden to prove ability to pay.
- The record here is silent regarding the defendant’s ability to pay, so the court allegedly failed to meet the statutory predicate.
- The court reversed the attorney-fee portion and otherwise affirmed; the court treated the statute as having 2009 versions for analysis but referenced 2011 amendments in noting changes.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether imposing fees without evidence of ability to pay violated statutes. | State bears burden to prove ability to pay; record silent insufficient. | Armstrong contends trial court had no authority to impose without ability-to-pay findings. | Reversed as to attorney-fee portion; otherwise affirmed. |
| Whether plain-error review authorizes correction of the fee-imposition error. | State argues the error is not plain and should not be corrected. | Armstrong argues plain-error review applies and the error should be corrected. | Court deems plain error and corrects the error on the record. |
Key Cases Cited
- State v. Brown, 310 Or 347 (1990) (plain-error standard requires obvious legal point and record sufficiency)
- State v. Jury, 57 P3d 970 (2002) (review timing based on law existing at time of decision)
- State v. Kanuch, 231 Or App 20 (2009) (state bears burden to prove defendant is or may be able to pay)
- Pendergrapht, 251 Or App 630 (2012) (cannot impose fees on record silent about ability to pay)
- Bacote v. Johnson, 333 Or 28 (2001) (reversing imposition of attorney fees lacking statutory predicate)
- State v. Ashley, 240 Or App 795 (2011) (review of express findings not automatic; policy on authority to impose)
- Ailes v. Portland Meadows, Inc., 312 Or 376 (1991) (consideration of preservational policies in error correction)