State v. Thomas, 425 P.3d 437

Defendant (age 20) was convicted by jury of three counts of first-degree unlawful sexual penetration for repeatedly using his hand on a 9-year-old over two days.
Statute ORS 137.700(2)(b)(F) required concurrent 300‑month sentences on each count; defendant objected on Eighth Amendment and Article I, §16 grounds.
Defendant had posted two security deposits pretrial ($10,000 and $2,500) under written agreements expressly providing that the funds could be applied to court‑ordered financial obligations, including attorney fees.
At sentencing the trial court imposed concurrent 300‑month terms, ordered a $1,600 contribution toward court‑appointed counsel to be taken from the posted security, and imposed a $107 “Mandatory State Amt.” in the written judgment.
On appeal defendant challenged (1) proportionality of the 300‑month sentence, (2) plain error in imposing $1,600 attorney‑fee contribution, and (3) the $107 mandatory state amount. The state conceded error as to the $107 amount.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Constitutional proportionality of mandatory 300‑month sentence	State: statute and sentence are constitutional under controlling precedent	Defendant: 300 months is unconstitutionally disproportionate facially and as‑applied (Eighth Amendment, Or. Const. art. I, §16)	Affirmed: court relied on binding precedent rejecting similar challenges and rejected both facial and as‑applied attacks
Imposition of $1,600 court‑appointed attorney fees	State: trial court permissibly found defendant could pay because posted security (expressly available for court obligations) provided funds	Defendant: no on‑the‑record statutory finding of ability to pay; record lacks evidence supporting ability to pay; requests plain‑error review	Affirmed: trial court expressly found funds available from security; precedent allows reliance on security posted under express condition; no plain error shown
Imposition of $107 "Mandatory State Amt."	State: conceded lack of statutory authority to impose the amount	Defendant: trial court erred in imposing amount and lacked opportunity to object	Reversed in part: court accepted state concession and reversed the $107 assessment

State v. Wise, 40 Or. App. 303 (trial court may treat conditionally posted security as source showing present ability to pay costs)
State v. Twitty, 85 Or. App. 98 (security deposit posted by defendant subject to express condition may be used to satisfy court costs/attorney fees)
State v. Wetzel, 94 Or. App. 426 (fees may be ordered paid from forfeited bail where bail covers imposed amounts)
State v. Nichols, 68 Or. App. 922 (posting of security alone, especially by third party, does not necessarily show defendant's ability to pay)
State v. Pardee, 229 Or. App. 598 (holding that a statute constitutional as applied defeats a facial challenge)
State v. Machado, 278 Or. App. 164 (reversal of portion of judgment imposing unauthorized "mandatory state amount")