State v. Wehr
275 Or. App. 528
Or. Ct. App.2015Background
- Defendant convicted by jury of two counts of second-degree assault; sentencing hearing followed.
- State recommended consecutive terms, fines, restitution, and unspecified court-appointed attorney fees; defendant filed a sentencing memorandum proposing merged counts, a single 70‑month term, restitution, one $200 fine, and $1,600 in court‑appointed attorney fees.
- At sentencing, defense counsel (on the record) identified the court‑appointed fees as $1,600; the court included $1,600 in fees in the judgment but made no finding on defendant’s ability to pay and the record contains no express evidence of ability to pay.
- Defendant did not object at sentencing or preserve the issue; on appeal he asked for plain‑error review of the imposed attorney fees under ORS 151.505(3) and ORS 161.665(4).
- The state argued invited error and that any error was not plain; the trial court’s judgment was affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether trial court erred by imposing $1,600 in court‑appointed attorney fees without finding defendant's ability to pay | State: No reversible error because defendant invited error; evidence in record (past jobs) militates against plain error | Defendant: Statutory law requires a finding of ability to pay; record shows indigency and no evidence of ability to pay; any error is plain | Court: Affirmed — any error not subject to plain‑error review because defendant’s sentencing recommendation likely invited the court to adopt that figure, making the error not "plain" |
Key Cases Cited
- State v. Brown, 310 Or 347, 800 P.2d 259 (1990) (establishes three‑part test for plain‑error review)
- State v. Coverstone, 260 Or App 714, 320 P.3d 670 (2014) (state bears burden to prove defendant has or may have ability to pay appointed counsel fees)
- State v. Pendergrapht, 251 Or App 630, 284 P.3d 573 (2012) (court may not impose fees based on speculation about future ability to pay)
- State v. Brown, 272 Or App 321, 355 P.3d 129 (2015) (distinguishes providing an informational fee amount from inviting error)
- State v. Cook, 267 Or App 776, 341 P.3d 848 (2014) (defendant’s on‑record negotiation of a reduced sum can constitute invited error)
- State v. Ferguson, 201 Or App 261, 119 P.3d 794 (2005) (party actively instrumental in creating an error cannot later complain)