Defendant was convicted of murder and sentenced to life in prison, with the possibility of parole after 25 years. He appeals, raising four assignments of error. In his first and second assignments, he asserts that the trial court erred in admitting certain evidence. We reject those assignments without published discussion. In his third and fourth assignments, he asserts that the court erred in imposing $18,000 in court-appointed attorney fees and an $18,000 indigent contribution. Defendant acknowledges that those claims of error are unpreserved but asks us to review and correct them as “plain error,” that is, as errors of law “apparent on the record.” ORAP 5.45(1).
Under ORS 151.505 and ORS 161.665, a trial court may order a defendant to pay court-appointed attorney fees and other costs. However, in order for a court to do so, there must be evidence that the defendant “is or may be able to pay” the fees and costs. ORS 151.505(3) (so providing); ORS 161.665(4) (same). “A court cannot impose fees based on pure speculation that a defendant has funds to pay the fees or may acquire them in the future.” State v. Pendergrapht,
In this case, defendant was charged with a murder committed in 2011, and he applied for court-appointed counsel. The trial court waived the $20 application fee and appointed counsel for defendant. Defendant’s case proceeded to a bench trial, where his defense was that he killed the victim as a result of an extreme emotional disturbance. See ORS 163.135 (providing for extreme emotional disturbance defense to murder). In support of his defense, defendant presented an expert witness who testified about defendant’s history of depression and alcohol abuse, among other things. The trial court found defendant guilty and sentenced him to life in prison, with the possibility of parole after 25 years. At sentencing, the court ordered defendant to pay $673 in assessments, $4,000.73 in restitution, a $9,327 fine, $18,000 in court-appointed attorney fees, and an $18,000 indigent contribution.
As mentioned, on appeal, defendant asserts that the trial court committed plain error by ordering him to pay the court-appointed attorney fees and indigent contribution.
In response, the state asserts that the trial court did not commit plain error because “nothing in this record tends to show that the defendant was unemployable.” “To the contrary,” the state asserts, “the record shows that defendant had held good jobs in the past.” In support of its assertion, the state quotes a portion of the testimony of defendant’s expert witness where the witness said that defendant had “several fairly good jobs.”
Whether there is sufficient evidence for a trial court to find that a defendant is or may be able to pay fees or other costs under ORS 151.505 or ORS 161.665 is a question of law, which we review for errors of law. See Bacote v. Johnson,
At the outset, we reject the state’s argument that the trial court did not err because “nothing in this record tends to show that the defendant was unemployable.” As we have held, accepting such an argument would impermissibly “shift [ ] the burden of proof to defendant” by requiring “defendant to demonstrate that he or she cannot pay attorney fees.” Coverstone,
We conclude that the trial court committed plain error; the record does not contain sufficient evidence to support a finding that defendant was or might be able to pay the court-appointed attorney fees or indigent contribution. First, there was no evidence from which the court could find that defendant was able to pay the challenged financial obligations; the record contains no evidence that defendant had financial resources that would enable him to pay the substantial obligations. Second, there was no evidence from which the trial court could find, without speculating, that defendant might acquire such resources in the future. Defendant was 52 years old at the time of sentencing, and he was sentenced to life in prison, with the possibility of parole after 25 years. It is speculative whether he will ever be released, and it is even more speculative that, if he is released, he might be able to obtain employment that would enable him to pay the $18,000 court-appointed attorney fees and the $18,000 indigent contribution, particularly in light of his history, age, and other court-imposed financial obligations.
The state points out that defendant’s expert witness testified that defendant had “several fairly good jobs” in the past, but that testimony — read in full — is insufficient to support a finding that defendant might be able to pay the challenged financial obligations in the future. While describing defendant’s problems with depression and alcohol abuse and the effects of those problems on his employment, the witness testified that defendant
“had a period of time where he worked in construction; had several fairly good jobs and then that’s the point where he just couldn’t function any longer and started working for temp agencies.”
According to the witness, “the point where [defendant] just couldn’t function any longer” occurred in the early “2000s,” approximately a decade before defendant’s crime, trial, and sentencing. Consistent with the witness’s testimony, the trial court found that defendant had “a long history of depression and substance abuse,” “difficulties holding down jobs for extended periods of time,” and “[flinancial problems due to underemployment, or unemployment.” Thus, although there was evidence that defendant “had several fairly good jobs” in the past, those jobs were too distant in time to support a finding that defendant might be able to pay the court-appointed attorney fees and indigent contribution. See State v. Ramirez-Hernandez,
Thus, the evidence before the trial court was insufficient to support a finding that defendant had the financial resources or employment opportunities that would enable him to pay the challenged financial obligations at the time of sentencing, and it was also insufficient to support a finding that that he might acquire those resources or opportunities during or after his lengthy prison term. Therefore, the trial court committed plain error by imposing the court-appointed attorney fees and indigent contribution. See Coverstone,
Having determined that the court committed plain error, we turn to the question whether we should exercise our discretion to review and correct the error. “When a plain error is established, we still must determine if it is appropriate to exercise our discretion to correct the error, considering, among other things, The gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way.’” Coverstone,
“As defendant points out, the error is grave. Defendant was ordered to pay $8,000, a substantial sum. Moreover, contrary to the state’s view, this is not a case where, had it been alerted to the issue, the trial court could easily have determined that defendant could or would be able to pay the fees. The record contains no evidence of any financial resources available to defendant. And, defendant was sentenced to a lengthy prison term — 375 months.”
For reasons similar to those in Coverstone, we conclude that it is appropriate to exercise our discretion to correct the erroneous imposition of court-appointed attorney fees and the indigent contribution in this case. The errors are grave, in that defendant was ordered to pay a substantial sum, $18,000 in court-appointed attorney fees and an additional $18,000 indigent contribution, for a total of $36,000 in addition to the approximately $14,000 in other financial obligations. And, this is not a case in which the trial court could have made the necessary finding regarding ability to pay if the issue had been brought to its attention; as discussed above, there was no evidence that defendant was able to pay the court-appointed attorney fees or might be able to pay them in the future. See Ramirez-Hernandez,
Portion of judgment requiring defendant to pay court-appointed attorney fees and indigent contribution reversed; otherwise affirmed.
Notes
ORAP 5.45(1) provides, in part:
“No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court * * *, provided that the appellate court may consider an error of law apparent on the record.”
The court did not specify the basis for the indigent contribution. Under ORS 151.505, at the conclusion of a case, a court can order the defendant to pay costs including “a reasonable attorney fee for counsel appointed to represent the person and a reasonable amount for expenses authorized under ORS 135.055 [,]” which applies to, among other things, fees and expenses for investigators and experts. Similarly, under ORS 161.665, in cases in which a defendant has been convicted, a court can order the defendant to pay costs, including “a reasonable attorney fee for counsel *** and a reasonable amount for fees and expenses incurred pursuant to preauthorization under ORS 135.055.”
Defendant does not challenge the trial court’s imposition of the assessments, restitution, or fine.
Although defendant’s brief states that he was 45 years old at the time of sentencing, the record reflects that defendant was born on June 28, 1960, and was therefore 52 years old at the time of sentencing.
See also State v. Delgado-Juarez,
See also Delgado-Juarez,