365 P.3d 662
Or. Ct. App.2015Background
- Defendant convicted of unlawful use of a weapon (ORS 166.220), menacing (ORS 163.190), and pointing a firearm (ORS 166.190).
- Sentence: 30 days' jail, 24 months' probation, and $260 in court‑appointed attorney fees.
- Defendant appealed solely challenging the attorney‑fee order as unpreserved, arguing plain error under ORAP 5.45(1).
- Defendant pointed to limited record facts: age 39, current on $691 monthly child‑support, a job offer as a truck driver in Texas, and the short jail term.
- State argued the record also showed 18 years' experience as a truck driver (5 years with same employer) and an associate degree, supporting an inference of ability to pay $260.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court plainly erred in imposing $260 attorney fees without record evidence of ability to pay | State: record shows long employment history, education, and job prospects so $260 is payable | Defendant: record was silent or insufficient about ability to pay; plain error requires reversal | No plain error; court may infer ability to pay from employment history, education, existing financial obligations, and short jail term |
Key Cases Cited
- State v. Coverstone, 260 Or App 714 (state bears burden to show defendant “is or may be able to pay” attorney fees)
- State v. Zepeda, 274 Or App 401 (trial court may not impose fees based on impermissible speculation; record must show ability to pay)
- State v. Gensler, 266 Or App 1 (educational background and prior employability can support non‑speculative inference of future ability to pay attorney fees)
- State v. Jaimes‑Pineda, 271 Or App 75 (testimony of ongoing employability and imminent return to work supports fee imposition)