State v. Kurtz, 13C43631

• Decision Date: 23 September 2015
• Docket Number: 13C43631,A155403.
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Joseph Wayne KURTZ, Defendant–Appellant.
• Court: Oregon Court of Appeals

273 Or.App. 741
359 P.3d 586

STATE of Oregon, Plaintiff–Respondent
v.
Joseph Wayne KURTZ, Defendant–Appellant.

13C43631
A155403.

Court of Appeals of Oregon.

Submitted Aug. 19, 2015.
Decided Sept. 23, 2015.

359 P.3d 587

Peter Gartlan, Chief Defender, and Lindsey K. Detweiler, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael S. Shin, Assistant Attorney General, filed the brief for respondent.

Before DUNCAN, Presiding Judge, and DEVORE, Judge, and FLYNN, Judge.

Opinion

DUNCAN, P.J.

273 Or.App. 742

In this criminal case, defendant appeals, assigning error to the trial court's imposition of court-appointed attorney fees. The state concedes that the trial court erred in imposing the fees; we agree, and, therefore, we reverse the portion of the trial court's judgment that imposes the fees and otherwise affirm.¹

Defendant was charged with, and convicted of, felony assault in the fourth degree, ORS 163.160 (Count 1); menacing, ORS 163.190 (Count 2); coercion, ORS 163.275 (Count 3); and tampering with a witness, ORS 162.285 (Counts 4–10). The trial court ordered defendant to serve 120 months in prison and to pay $2,440 in court-appointed attorney fees. Defendant did not object to the fees but now contends that the trial court committed plain error by imposing them and that we should exercise our discretion to review the error. See ORAP 5.45(1) (authorizing plain error review); State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990) (describing requirements for plain-error review under ORAP 5.45 ); see also Ailes v. Portland Meadows, Inc., 312 Or. 376, 382 n. 6, 823 P.2d 956 (1991) (identifying factors to be considered when determining whether to exercise discretion to correct plain error).

A trial court may order a convicted defendant to pay costs, including “a reasonable attorney fee for counsel appointed to represent the [defendant,]” only if the defendant “is or may be able to” pay them. ORS 151.505(3) ; ORS 161.665(4) ; Bacote v. Johnson, 333 Or. 28, 33, 35 P.3d 1019 (2001) (a court “must determine if the person is or, in the future, may be able to pay costs”); State v. Kanuch, 231 Or.App. 20, 24, 217 P.3d 1082 (2009) (a court “lacks authority to sentence a defendant to pay costs unless it has determined that the defendant ‘is or may be able to pay them’ ” (quoting ORS 161.665(4) )).

359 P.3d 588 ...