371 P.3d 1275
Or. Ct. App.2016Background
- Defendant was charged with three offenses; convicted of harassment and fourth-degree assault, acquitted of interfering with a report.
- Trial court found defendant financially eligible for appointed counsel and appointed counsel pretrial.
- At sentencing, the state requested fines and fees but introduced no evidence about defendant’s present or future ability to pay attorney fees.
- The court sentenced defendant to 18 months’ probation, imposed $200 in fines and $416 in court-appointed attorney fees.
- Defense counsel objected, arguing the court needed to make statutorily required findings that defendant “is or may be able to pay”; the court made no such findings or on-the-record explanation.
- The court of appeals affirmed convictions but reversed the portion of the judgment requiring payment of court-appointed attorney fees for failure to make the required predicate determination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a court may order repayment of court-appointed attorney fees without making the statutory predicate finding that the defendant "is or may be able to pay" | State: statutes do not require express/formal findings; the court need not make a particular form of finding to determine ability to pay | Defendant: ORS 151.505 and ORS 161.665 require the court to determine that defendant "is or may be able to pay" before imposing fees; absence of such a finding renders the award unauthorized | Court: Statutes require the predicate determination; record must affirmatively support that the court made the finding. Where record is silent, court erred; reversed fee award. |
Key Cases Cited
- State v. Kanuch, 231 Or App 20 (2009) (trial court lacks authority to impose fees absent finding that defendant is or may be able to pay)
- Bacote v. Johnson, 333 Or 28 (2001) (appellate review examines whether record indicates compliance with statutory procedures in awarding fees)
- State v. Below, 264 Or App 384 (2014) (review standard for sufficiency of evidence supporting a court’s finding that a defendant is or may be able to pay)
- State v. Coverstone, 260 Or App 714 (2014) (record silence regarding ability to pay demonstrates trial court failed to comply with statutory requirement before imposing fees)
- Fuller v. Oregon, 417 U.S. 40 (1974) (upholding Oregon’s recoupment scheme because of safeguards requiring court to consider defendant’s ability to pay and burden imposed by fee obligation)