State v. Kanuch

• Decision Date: 23 September 2009
• Docket Number: 05CR0897,A138249.
• Citation: 231 Or. App. 20,217 P.3d 1082
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Brian Scott KANUCH, Defendant-Appellant.
• Court: Oregon Court of Appeals

217 P.3d 1082

231 Or. App. 20

STATE of Oregon, Plaintiff-Respondent, v. Brian Scott KANUCH, Defendant-Appellant.

05CR0897

A138249.

Court of Appeals of Oregon.

Submitted on August 28, 2009.

Decided September 23, 2009.

Peter Gartlan, Chief Defender, and Robin A. Jones, Senior Deputy Public Defender,

Appellate Division, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the brief for respondent.

Before LANDAU, Presiding Judge, and ORTEGA, Judge, and CARSON, Senior Judge.

LANDAU, P.J.

Defendant appeals a judgment of conviction for aggravated murder with a firearm. ORS 163.095. He assigns error to the trial court's entry of a money judgment for $15,000 in attorney fees as part of the sentence, arguing that the court failed to find that he has assets sufficient to pay all or part of that amount. We agree with defendant and vacate the portion of the judgment that requires defendant to pay attorney fees. We remand for resentencing, but otherwise affirm.

The relevant facts are uncontested. Defendant shot and killed the victim. He was charged with aggravated murder with a firearm, among a number of other offenses. Defendant pleaded guilty to the aggravated murder charge and stipulated to a sentence of life in prison with a 30-year minimum. At sentencing, the trial court sentenced defendant to life in prison with a 30-year minimum, along with a five-year firearm minimum and post-prison supervision for life. In addition, among other things, the court ordered defendant to pay court-appointed attorney fees. In imposing the order to pay the attorney fees, the court asked defendant's counsel whether he knew the amount of the bill for his services. Defendant's counsel replied,

"* * * I don't have that amount, and I'm not even sure that I could get that together. Further, I would advise the Court that I have not advised [defendant] that there would be any possible judgment for Court appointed attorney's fees. I have never seen one entered in this kind of case. I think that it's clear from the record that he is indigent, going to be in prison for at least the next 30 years. Upon his release from prison, there would be no ability to pay. I think that's reasonabl[y] foreseeable, and I would ask the Court to impose no Court appointed attorney's fees. It would be impossible to recover those."

The court replied that, "at this time I have no information before me as to any other potential assets the defendant might have, so the Court is going to impose the repayment of Court appointed attorney fees." At that point, the court did not say what amount would be imposed. And it is undisputed that there is no further information in the record about defendant's ability to pay any amount of attorney fees. When the judgment issued, it required defendant to pay attorney fees in the amount of $15,000.

On appeal, defendant's sole assignment of error is that the trial court erred in ordering him to pay attorney fees without determining that he had the ability to pay them. Defendant contends that the statutes authorizing an order to pay attorney fees require the court expressly to find that a defendant has the ability to pay them.

The state responds first by asserting that defendant failed to preserve his claim of error. According to the state, although it is clear that defendant objected to the order to pay attorney fees, defendant did not object specifically to the court's failure to make findings as to his ability to pay. As for the merits of defendant's assignment, the state acknowledges that "the record is minimal." Indeed, the state concedes that "the record does not reflect what defendant's financial resources might have been at the time of trial." The state nevertheless insists that the court did not err in ordering defendant to pay $15,000 in attorney fees because it "apparently took defendant's circumstances into account." The state does not identify what those "circumstances" are, however.

We begin with preservation. As the state acknowledges, defendant plainly objected at sentencing to the entry of an order to pay attorney fees. He more specifically objected that he lacked the resources to pay attorney fees. On appeal, defendant argues that the trial court erred in ordering him to pay fees, both because the court failed to make required findings and because there is simply no evidence of his ability to pay them. While it may be debatable that defenda...