344 P.3d 57
Or. Ct. App.2015Background
- Defendant pleaded guilty to murder, first-degree abuse of a corpse, first-degree arson, and first-degree criminal mistreatment pursuant to a plea agreement.
- At sentencing the trial court imposed a $24,327 fine, ordered $18,000 in court-appointed attorney fees, and ordered an $18,000 "indigent contribution."
- Defendant did not preserve these sentencing challenges for appeal and asked the appellate court to review them as apparent or plain error under ORAP 5.45(1).
- The State conceded that ordering payment of court-appointed attorney fees and the indigent contribution was plain error given the record.
- The appellate court agreed: the record lacked evidence that defendant "is or may be able to pay" those amounts and defendant’s life sentence with a 25-year mandatory minimum made future ability to pay speculative.
- The court declined to review the fine imposition for plain error, explaining ORS 161.645 requires only that the court consider defendant’s financial resources (not make a finding of ability to pay), and the record does not show the court failed to consider them.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether court could order payment of court‑appointed attorney fees and indigent contribution without record showing defendant "is or may be able to pay" | State conceded such orders were improper where record lacks evidence of ability to pay | Defendant argued sentencing orders for fees and indigent contribution were improper and requested plain‑error review | Reversed as plain error: record insufficient to support nonspeculative finding of present or future ability to pay; fees and indigent contribution vacated |
| Whether appellate court should exercise plain‑error review for unpreserved errors about fees and indigent contribution | State urged correction and conceded plain error | Defendant sought review under ORAP 5.45(1) | Court exercised discretion to correct those errors and reversed those portions of judgment |
| Whether fine imposed under ORS 161.645 can be reviewed for plain error when defendant didn’t preserve objection | State argued fine was not subject to plain‑error review here | Defendant argued fine imposition was erroneous and sought plain‑error review | Not susceptible to plain‑error review: statute requires the court to consider ability to pay (not make express ability‑to‑pay finding); record does not show consideration failed |
| Whether court may order other defense costs in addition to attorney fees | State noted statutes permit repayment of defense expenses if ability to pay exists | Defendant argued charges were improper absent ability to pay evidence | Court noted statutes permit recoupment of defense expenses but only if defendant is or may be able to pay; here record lacked that evidence |
Key Cases Cited
- State v. Brown, 800 P.2d 259 (Or. 1990) (describes requirements for plain‑error review under ORAP 5.45(1)).
- State v. Below, 332 P.3d 329 (Or. App. 2014) (trial court plainly erred in imposing $18,000 in court‑appointed attorney fees and an $18,000 indigent contribution in similar circumstances; appellate correction appropriate).
- State v. Qualey, 906 P.2d 835 (Or. App. 1995) (in assessing a compensatory fine under ORS 161.645, court need only consider defendant’s ability to pay, not make an express finding that defendant can pay).