State v. Hernandez-Camacho, A157700

• Decision Date: 02 June 2016
• Docket Number: A157700
• Parties: State of Oregon, Plaintiff–Respondent, v. Edgar Hernandez–Camacho, Defendant–Appellant.
• Court: Oregon Court of Appeals

278 Or.App. 565
375 P.3d 588

State of Oregon, Plaintiff–Respondent
v.
Edgar Hernandez–Camacho, Defendant–Appellant.

A157700

Court of Appeals of Oregon.

Submitted April 28, 2016.
June 2, 2016

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Rebecca M. Auten, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

ORTEGA, P.J.

278 Or.App. 566

In this criminal appeal, defendant challenges the imposition of court-appointed attorney fees and a term in the judgment of conviction that merged guilty verdicts into a single first-degree sexual abuse conviction “for sentencing purposes.” Shortly after briefing was completed in this appeal, the trial court entered an amended judgment that merged the guilty verdicts into a single conviction and removed any reference to “for sentencing purposes.” Accordingly, defendant's second assignment of error is moot, and we do not address it. See Dept. of Human Services v. B.A. , 263 Or.App. 675, 678, 330 P.3d 47 (2014) (“A case is moot when it involves a matter that no longer is a controversy between the parties.”). Thus, we address only defendant's challenge to the trial court's imposition of attorney fees.

Defendant, who was sentenced to 150 months' imprisonment, complains that the court erred when it imposed $3,095 in court-appointed attorney fees without sufficient evidence in the record to support a finding that defendant “is or may be able to pay” those fees. See ORS 151.505(3) (“The court may not require a person to pay costs under this section unless the person is or may be able to pay the costs.”); ORS 161.665(4) (“The court may not sentence a defendant to pay costs under this section unless the defendant is or may be able to pay them.”). Defendant failed to preserve that claim of error but urges us to review and correct the error as “an error of law apparent on the record.” ORAP 5.45(1) ;

375 P.3d 589

Ailes v. Portland Meadows, Inc. , 312 Or. 376, 381–82, 823 P.2d 956 (1991) (describing “plain error” doctrine).

The state asserts that the trial court did not err at all, and certainly did not commit plain error. In the state's view, the record contained enough evidence to support a finding that defendant may be able to pay his attorney fees once released from prison. In particular, the state points to evidence that defendant (1) had earned a high school diploma and had attended some college in Mexico, (2) had earned a GED and learned English while in jail, and (3) had an extensive and consistent work history (including

278 Or.App. 567

evidence that he had started his own landscaping company). Furthermore, there was evidence that defendant “said he always had enough money to make ends meet and has no debt.”

In support of its position, the state relies on State v. Gensler , 266 Or.App. 1, 12–13, 337 P.3d 890 (2014), rev. den. , 356 Or. 690, 344 P.3d 1112 (2015). In Gensler, the record demonstrated that the defendant had earned his GED, had attended some college, and had taken some college courses while imprisoned in another state. There was testimony that the stepfather of one of the defendant's victims had secured a job for the defendant relatively recently, and further,...