State v. Pendergrapht
251 Or. App. 630
Or. Ct. App.2012Background
- Defendant was charged with two counts of failure to appear in the second degree and was appointed counsel after an eligibility affidavit.
- Defendant pleaded guilty to the two failure-to-appear counts; plea petition noted medications he was taking.
- At sentencing, the court imposed $400 attorney fees among other costs, without addressing ability to pay.
- Defendant argued the court lacked authority to impose fees absent evidence that he is or may be able to pay.
- This appeal focuses on whether ORS 151.505 and ORS 161.665 require record support of ability to pay before imposing fees.
- The court reverses the attorney fee award but affirms the rest of the judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court could impose attorney fees without evidence of ability to pay | Kanuch: must show defendant is or may be able to pay | Defendant: no record evidence of ability to pay justifies imposition | Fees reversed; lack of ability-to-pay record invalidates imposition |
| Whether the record complies with statutory predicate for costs under ORS 151.505/161.665 | State: record supports ability to pay; imposition proper | Defendant: record silent or insufficient on resources | Imposition improper due to silent record on ability to pay |
| Whether the remedy is a reversal of the fee award, with other portions affirmed | State: error harmless or within scope if other portions valid | Defendant: none; remedy should reflect statutory requirements | Attorney fee award reversed; remaining judgment affirmed |
Key Cases Cited
- Bacote v. Johnson, 333 Or 28 (2001) (record must show ability to pay for costs)
- Kanuch, 231 Or App 20 (2009) (cannot impose fees on silent record; defendant need not prove inability)
- Normile, 52 Or App 33 (1981) (ability-to-pay determination must be supported by the record)
- State v. Gray, 113 Or App 552 (1992) (reviewable for excess of statutory authority when imposition violates requirements)
- State v. Anderson, 113 Or App 416 (1992) (disposition invalid if not consistent with statutory requirements)