291 P.3d 805
Or. Ct. App.2012Background
- Defendant pled guilty to one count of menacing; sentence included probation and monetary obligations including $400 attorney fees.
- Defense counsel argued defendant, who receives disability benefits, cannot pay attorney fees; requested waiver under ORS 151.505(4).
- Court questioned ability to pay and instructed payments to be handled via probation officer, with a 90-day horizon to pay.
- Defendant did not object to the fee order at imposition; appeal challenging the attorney-fee component followed.
- Court affirmed; held disability income established ability to pay, and that the record supported imposition of fees.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| May the court impose attorney fees if defendant is or may be able to pay? | State argued the record supports ability to pay due to disability income. | Ortega contends lack of explicit inquiry into burden; defense counsel stated unemployment and inability to pay. | Yes; record showed disability income sufficient to support payment. |
| Was the fee-imposition delegation to the probation officer properly preserved and reviewed? | State contends preserved; not in defense against the order. | Ortega argues improper delegation of duty to impose fees to probation officer. | Not preserved; court declines to address. |
Key Cases Cited
- State v. Pendergrapht, 251 Or App 630 (Or. App. 2012) (cannot impose fees without ability-to-pay finding; record must show defendant is or may be able to pay)
- State v. Kanuch, 231 Or App 20 (Or. App. 2009) (ability-to-pay requirement for costs in sentencing)