State v. Brown
| Decision Date | 15 July 2015 |
| Docket Number | A155738.,C122907CR |
| Citation | 272 Or.App. 321,355 P.3d 129 |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Tenikia Elizabeth BROWN, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
272 Or.App. 321
355 P.3d 129
STATE of Oregon, Plaintiff–Respondent
v.
Tenikia Elizabeth BROWN, Defendant–Appellant.
C122907CR
A155738.
Court of Appeals of Oregon.
Submitted May 29, 2015.
July 15, 2015.
Peter Gartlan, Chief Defender, and Shawn E. Wiley, Chief Deputy Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and
Michael A. Casper, Senior Assistant Attorney General, filed the brief for respondent.
Before ORTEGA, Presiding Judge, and DeVORE, Judge, and GARRETT, Judge.
Opinion
GARRETT, J.
Defendant appeals a judgment of conviction and assigns error solely to the portion of the judgment that requires her to pay $600 for court-appointed attorney fees. Although defendant did not object at sentencing, she argues on appeal that the trial court plainly erred by imposing those attorney fees because the record contains no evidence defendant “is or may be able to pay” them. The state concedes that the record contains no such evidence and that “the award was plainly erroneous.”1 Nevertheless, the state argues that “the trial court's error is not properly subject to review because defendant invited it.” For the reasons that follow, we conclude that defendant did not invite the error. Furthermore, we conclude that the unpreserved error in this case warrants correction. Accordingly, we reverse the portion of the judgment that imposed attorney fees.
The facts relevant to this appeal are entirely procedural. Defendant was convicted of one count of identity theft, ORS 165.800. The court entered a judgment of conviction that sentenced defendant to, among other things, a prison term of 33 months and an assessment of $600 to help pay for the cost of her court-appointed attorney. At sentencing, the following colloquy occurred:
“[THE COURT: Defense attorney], were you retained—no, you were appointed on this case?
“[DEFENSE ATTORNEY]: I'm appointed.
“THE COURT: So I'm sorry. There has to be attorney fees that's—that's—both of these are C felonies. But you're
not on my schedule, so do you have an idea, how much your attorney fees are going to be?
“[DEFENSE ATTORNEY]: I don't. I know all my cases are kind of muddled together. On the probation violation, not much at all. Well, we haven't gotten there.
“THE COURT: Well—
“[DEFENSE ATTORNEY]: In fact, I doubt I have any time for the probation violation that is not also being used and would not also be double billed for any of the other cases.
“THE COURT: Well, let's do this. You need to get—I will order attorney's fees so long as they're reasonable and you'll need to give that number to [the prosecutor] to put in the final judgment when you figure it all out, okay? And then there is the $200 felony fine.
“Is there anything else on—on the new conviction on C122907CR, [prosecutor]?
“[THE STATE]: I don't believe so.
“THE COURT: [Defense attorney]?
“[DEFENSE ATTORNEY]: If I may have Your Honor's permission to address attorney's fees.
“THE COURT: Yeah.
“[DEFENSE ATTORNEY]: Yeah. I believe in this case that—that the attorney's fees should be the amount stipulated by contract to other public defender's offices as it was not my client's decision to have someone who is paid by the hour by the State instead of the—the contract rates that are established.
“It's nothing she did. I believe that's fair and would be appropriate in this case. Also in my personal accounting I have not subdivided them. When I throw in my time to the state I will be submitting it for all the cases. I mean, combined, not separately.
“THE COURT: But if I order $600, for instance, which would be the break for the C felony for the public defender's office that sort of limits you for—to asking for only $600, I think.
[DEFENSE ATTORNEY]: It does not.
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...and rules on it and (2) that defense counsel was not "actively instrumental in bringing about" an alleged error, State v. Brown , 272 Or. App. 321, 324, 355 P.3d 129 (2015), by declining to put forth a closing argument after the state also declined to do so.5 Two of the statements that the ......
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Docken v. Myrick
...bringing about an alleged error cannot be heard to complain, and the case ought not to be reversed because of it." State v. Brown , 272 Or.App. 321, 324, 355 P.3d 129 (2015) (internal quotation marks omitted). For example, a party who affirmatively misstates the law cannot appeal the decisi......
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...have the capacity to pay the fees”; exercising discretion to correct erroneously imposed $510 in attorney fees); State v. Brown , 272 Or.App. 321, 325–26, 355 P.3d 129 (2015) (exercising discretion to correct erroneously imposed $600 in attorney fees where defendant was sentenced to 33 mont......
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State v. Flack
...state of mind, UCrJI 1116, before defendant agreed to the state substituting UCrJI 1227A for UCrJI 1116. See State v. Brown , 272 Or.App. 321, 324-25, 355 P.3d 129 (2015) (concluding that the defendant did not invite the court's error in imposing attorney fees when "the court had already de......