311 P.3d 975
Or. Ct. App.2013Background
- Defendant pleads no contest to one count of murder; suffers life sentence with parole after 300 months.
- Trial court imposed several monetary awards: $37,400 attorney fees, $26,018.09 restitution, $607 unitary assessment, $35 offense surcharge.
- Prosecutor argued defendant could pay by liquidating assets and possible future income; noted joint-owned vehicles and a trailer sale in progress.
- Defense argued defendant is physically disabled with limited income (SSA disability, $670/month) and likely cannot pay; anticipated minimal prison earnings ($300–$600/year) and long-term poverty.
- Court ordered the money awards including attorney fees, but suspended payment of attorney fees while expressing uncertainty about future ability to pay; did not suspend other costs.
- On appeal, defendant argues the attorney-fee prize violates ORS 161.665(4) because defendant is not or may not be able to pay; the issue centers on whether the court had authority to impose fees and whether the record supports ability to pay.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether imposing attorney fees violated ORS 161.665(4). | State argues defendant may be able to pay. | Defendant cannot pay given disability and age. | Reversed: attorney-fee award improper; cannot impose without showing ability to pay. |
| Whether the suspension cured the improper imposition. | Court believed fees could be paid in the future. | Suspension does not cure initial lack of authority to impose. | Suspension irrelevant; improper to impose in first instance. |
| Whether the record supports any ability to pay attorney fees. | Possibility of payment via family/assets. | Record shows no evidence of ability to pay; speculation not enough. | Record does not support ability to pay; fees cannot be imposed. |
Key Cases Cited
- State v. Kanuch, 231 Or App 20 (2009) (cannot impose fees without showing defendant is or may be able to pay; record must support ability to pay)
- State v. Normile, 52 Or App 33 (1981) (requires ability-to-pay determination under ORS 161.665(4))
- State v. Pendergrapht, 251 Or App 630 (2012) (cannot rely on pure speculation that funds will become available)
- Bacote v. Johnson, 333 Or 28 (2001) (requires ability-to-pay analysis under prior statute)