555 P.3d 206
Or. Ct. App.2016Background
- Defendant convicted of first-degree forgery and sentenced to 18 months’ probation.
- Trial court entered judgment requiring defendant to pay $360 in court-appointed attorney fees and $1,000 in fines and costs; additional penalties (automatic payment schedule, $200 assessment, 28% collection fee) could attach if unpaid.
- Defendant did not preserve an objection to the imposition of the attorney-fee obligation at trial and raised the issue on appeal as plain error under ORAP 5.45(1).
- Defendant argued the record was silent as to his ability to pay and that other record indications (living in his car, pregnant girlfriend, uncertain employment prospects, prior convictions) suggested indigency.
- The Court of Appeals agreed the record did not show the state met its burden to prove ability to pay and that the error was plain, but also considered whether to exercise discretion to correct the error.
- Because the $360 fee was imposed in addition to substantial other monetary obligations and potential penalties, the court exercised its discretion to correct the erroneous attorney-fee order and reversed that portion of the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court could order defendant to pay court-appointed attorney fees absent record showing ability to pay | State implicitly argues fee order was proper as imposed (no preserved objection) | Defendant: record silent on ability to pay; facts indicate indigency, so fee improper under ORS 161.665(4) | Court: Error was plain (record silent); exercised discretion to correct and reversed the $360 attorney-fee order |
| Whether plain-error review is available for unpreserved claim about attorney fees | State: preservation required; issue forfeited | Defendant: asks for plain-error review under ORAP 5.45(1) | Court found plain error standard met because record silent about ability to pay; proceeded to discretionary correction |
| Whether the amount of the fee and other monetary obligations affect discretion to correct error | State: no specific argument reported | Defendant: combined financial burden makes fee consequential | Court: size of combined obligations (fee + $1,000 fine/costs + potential penalties) made error sufficiently grave to warrant correction |
| Whether the record facts (living in car, pregnant partner, criminal history) suffice to show inability to pay | State: no evidence of inability to pay in record | Defendant: those facts indicate likely indigency | Court: record overall silent as to ability to pay; cited precedent that silence requires reversal of fee order when not shown |
Key Cases Cited
- State v. Kanuch, 231 Or. App. 20 (court may not order defendant to pay appointed-attorney fees when record is silent on ability to pay)
- State v. Coverstone, 260 Or. App. 714 (plain-error requirements may be satisfied where record is silent regarding ability to pay attorney fees)
- Ailes v. Portland Meadows, Inc., 312 Or. 376 (factors for discretionary correction of unpreserved error)
- State v. Walker, 274 Or. App. 501 (exercising discretion to correct erroneous imposition of appointed-attorney fees given indigency and record silence)