332 P.3d 338
Or. Ct. App.2014Background
- Defendant convicted of first-degree criminal trespass and sentenced; court ordered $400 in court-appointed attorney fees.
- Defendant did not object to fees at trial but appealed, challenging (1) denial of judgment of acquittal (rejected without published discussion) and (2) imposition of attorney fees without a record finding of ability to pay under ORS 151.505(3).
- Record evidence: defendant was homeless, had an unspecified mental illness, suffered severe alcohol dependency, had spent 60 days in jail, and was held on an immigration detainer with likely deportation.
- The prosecution pointed to probation officer testimony that defendant had completed prior probation, sought counseling, took medication sometimes, and had said he could find work through friends.
- Lower court imposed fees without an express finding that defendant "is or may be able to pay"; defendant argued the record lacked evidence to support that finding.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether denial of judgment of acquittal was erroneous | State: conviction should stand | Defendant: trial court erred in denying judgment of acquittal | Rejected — conviction affirmed (no published discussion) |
| Whether trial court could impose attorney fees absent record finding of ability to pay | State: probation officer testimony allowed reasonable inference defendant may pay costs | Defendant: record lacks evidence defendant "is or may be able to pay"; court must make finding under ORS 151.505(3) | Reversed as plain error: fee order vacated for lack of proof of ability to pay; otherwise affirmed |
Key Cases Cited
- State v. Coverstone, 260 Or. App. 714 (2014) (failing to find ability to pay before imposing fees can be plain error)
- State v. Kanuch, 231 Or. App. 20 (2009) (state bears burden to prove defendant "is or may be able to pay" attorney fees)
- State v. Pendergrapht, 251 Or. App. 630 (2012) (fees cannot be imposed based on pure speculation about future ability to pay)
- Ailes v. Portland Meadows, Inc., 312 Or. 376 (1991) (factors for appellate exercise of discretion to correct plain error)