358 P.3d 326
Or. Ct. App.2015Background
- Defendant convicted of first-degree burglary and possession of methamphetamine and sentenced to 36 months in prison.
- Trial court imposed $980 in court-appointed attorney fees on defendant.
- Defendant challenged the fee order as failing to determine whether he is or may be able to pay, per ORS 151.505(3) and ORS 161.665(4).
- Defendant did not preserve the claim but sought plain-error review under ORAP 5.45(1).
- State argued the record showed employability and potential ability to pay the fees.
- Court held the trial court plainly erred by imposing fees without evidence that defendant is or may be able to pay, and exercised discretion to correct the error, reversing the fee payment portion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether imposing attorney fees without evidence of ability to pay was plain error | State argues defendant may pay given past employment. | Meets ORS 151.505(3) and 161.665(4) requirement to show ability to pay. | Yes; plain error to impose fees without such evidence. |
| Whether the court should correct the plain error | Relief unnecessary due to remissions or trial-court relief options. | Court should correct error to protect statutory requirements. | Discretion exercised to correct the error; portion of judgment reversed. |
Key Cases Cited
- State v. Ramirez-Hernandez, 264 Or App 346 (2014) (plain error to impose attorney fees without ability-to-pay evidence)
- State v. Mejia-Espinoza, 267 Or App 682 (2014) (no evidence of future earnings; no ability to pay; plain error)
- State v. Williams, 271 Or App 693 (2015) (exercise discretion to correct plain error over hardship argument)
- State v. Fleet, 270 Or App 246 (2015) (reversed as plain error the imposition of attorney fees)
- State v. Coverstone, 260 Or App 714 (2014) (exercise discretion to correct plain error despite hardship concerns)