359 P.3d 586
Or. Ct. App.2015Background
- Defendant Duncan was convicted of felony assault in the fourth degree, menacing, coercion, and witness tampering counts.
- The trial court sentenced Duncan to 120 months’ imprisonment and ordered $2,440 in court-appointed attorney fees.
- Duncan did not object at trial to the attorney-fee order.
- The state concedes the trial court erred in imposing the fees; the issue is whether the record supports payment ability.
- Oregon law requires a court to determine a defendant’s ability to pay before imposing costs or attorney fees.
- The court reverses the attorney-fee portion of the judgment and affirms the remainder; other challenges are rejected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Can attorney fees be imposed without evidence of ability to pay? | State argues the record lacks payment-ability evidence. | Duncan contends the record is silent on ability to pay. | Yes; the trial court erred by imposing fees without ability-to-pay evidence. |
| Should plain error review be exercised for this issue? | State asserts plain error review is warranted due to substantial fees. | Duncan argues plain error should be reviewed under ORAP 5.45(1). | Yes; the error is plain and review is appropriate, reversing the fee order. |
Key Cases Cited
- State v. Kanuch, 231 Or App 20, 217 P.3d 1082 (2009) (court must determine ability to pay before costs/fees)
- State v. Pendergrapht, 251 Or App 630, 284 P3d 573 (2012) (record must show defendant is or may be able to pay attorney fees)
- State v. Coverstone, 260 Or App 714, 320 P3d 670 (2014) (plain-error review of fee-imposition when record silent on ability to pay)
- State v. Nickerson, 272 Or App 155, 354 P3d 758 (2015) (reversing fees where length of sentence indicates impact of fees)
- State v. Fleet, 270 Or App 246, 347 P3d 345 (2015) (reversing fees for substantial amount given prison term)
- State v. Wells, 269 Or App 528, 345 P3d 498 (2015) (reversing $1,600 in fees under similar reasoning)
- State v. Callentano, 263 Or App 190, 326 P3d 630 (2014) (reversing fees where related to lengthy sentence)
- State v. Baco, 262 Or App 169, 324 P3d 491 (2014) (not exercising plain-error review in some fee-imposition cases)