330 P.3d 1248
Or. Ct. App.2014Background
- Defendant was convicted of multiple sexual offenses and sentenced to 298 months in prison.
- Defendant challenged several assignments of error (jury verdicts and closing argument comments) but the opinion addresses only the fifth assignment about attorney fees.
- Trial court ordered $1,200 in court-appointed attorney fees, despite the record being silent on whether defendant could pay.
- Defendant argued this violated ORS 151.505(3) and ORS 161.665(4) because ability to pay was not shown.
- Defendant preserved the claim for review only as an unpreserved error apparent on the face of the record under ORAP 5.45; trial court did not resolve ability-to-pay.
- The Court of Appeals reversed the fee order, finding plain error and exercising discretion to correct it; the remainder of the judgment was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether imposing attorney fees without ability-to-pay evidence was plain error. | State urged no additional merit beyond preservation; not necessary to review due to argument avoidance. | Trial court plainly erred by ordering fees when the record lacked evidence of ability to pay. | Yes; plain error; fee order reversed, rest of judgment affirmed. |
Key Cases Cited
- State v. Coverstone, 260 Or App 714 (2014) (plain error for fees where ability to pay is absent)
- State v. Chavez, 263 Or App 187 (2014) (grave error in imposing attorney fees with no ability-to-pay evidence)
- State v. Callentano, 263 Or App 190 (2014) (exercising discretion to correct grave error under similar circumstances)
- State v. Baco, 262 Or App 169 (2014) (contrast in exercising discretion where error not grave)
- Ailes v. Portland Meadows, Inc., 312 Or 376 (1991) (court may review unpreserved error of law apparent on record)