State v. Laune

• Decision Date: 15 April 2020
• Docket Number: A163483
• Citation: 303 Or.App. 541,464 P.3d 459
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Daryl Lee LAUNE, Jr., Defendant-Appellant.
• Court: Oregon Court of Appeals

303 Or.App. 541

464 P.3d 459

STATE of Oregon, Plaintiff-Respondent,

v.Daryl Lee LAUNE, Jr., Defendant-Appellant.

A163483

Court of Appeals of Oregon.

Submitted July 30, 2018.

April 15, 2020

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erin J. Snyder Severe, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, filed the brief for respondent.

Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.

DeHOOG, P. J.

Defendant appeals from a judgment of conviction for violating a stalking protective order. As part of defendant's sentence, the trial court ordered that defendant pay $330 in court-appointed attorney fees. On appeal, defendant argues that the court erred in imposing that obligation, because a court may order a defendant to pay attorney fees only when there is evidence in the record that the defendant is or may be able to pay them, and here the court erroneously relied on a security deposit paid by defendant's sister to find that he had that ability. According to defendant, under ORS 135.265(2), which governs the return of security deposits, a deposit made by a third party on a defendant's behalf is not considered the defendant's property for purposes of an ability-to-pay determination and therefore cannot serve as the basis for such a finding in regard to attorney fees. As we explain below, however, that argument is not preserved. Accordingly, we decline to address it on appeal, and we affirm.

The relevant facts are procedural and undisputed. Defendant was charged with violating a court's stalking protective order, and the trial court approved defendant's request for court-appointed counsel. Shortly thereafter, defendant's sister paid a $1,500 security deposit and signed a security agreement to secure defendant's release from jail. The agreement stated, in part:

"SECURITY REFUND: At the conclusion of the case, the judge will decide if security can be refunded. Security can be applied to the defendant's financial obligations on any case, or to any child support the defendant owes. The Court will deduct from the refund 15% of the amount posted as administrative costs.

"THE PERSON POSTING SECURITY ACKNOWLEDGES NOTICE THAT THE SECURITY AMOUNT MAY BE USED TO PAY THE DEFENDANT'S FINANCIAL OBLIGATIONS, INCLUDING CHILD SUPPORT, AND MAY BE FORFEITED IF THE DEFENDANT FAILS TO APPEAR FOR ANY SCHEDULED HEARING."

(Uppercase and underscore in original.)

A jury found defendant guilty of the charged offense of violating a court's stalking protective order. At defendant's ensuing sentencing hearing, the trial court ordered defendant to pay, among other fines and fees, a $330 court-appointed attorney fee, to be taken from the $1,500 security deposit that defendant's sister had posted on his behalf.

Defendant correctly points out that a trial court errs when it imposes a court-appointed attorney fee absent a record that the defendant "is or may be able to pay" the fee, and that the burden is on the state to prove that ability to pay. ORS 151.505(3) ;¹ ORS 161.665(4) ; State v. Crider , 291 Or. App. 23, 32, 418 P.3d 18 (2018). Defendant acknowledges that ORS 135.265(2)² authorizes a trial court to retain portions of a security deposit at the conclusion of a criminal case. Defendant contends, however, that, when the legislature amended ORS 135.265(2) in 1979 to make security deposits refundable to the person making the deposit, rather than to the defendant, the legislature expressed its intention that third-party security deposits not be considered "available" for purposes of determining a defendant's ability to pay under ORS 151.505(3).

More specifically, defendant notes that, before ORS 135.265(2) was amended in 1979, a defendant was presumptively entitled to recover—less a processing fee—sums posted as security, as follows:

"When conditions of the release agreement have been performed and the defendant has been discharged from all obligations in the cause, the clerk of the court shall return to the accused , unless the court orders otherwise, 90 percent of the sum which has been deposited and shall retain as security release costs 10 percent of the amount deposited."

ORS 135.265(2) (1977), amended by Or. Laws 1979, ch. 878, § 1 (emphasis added). Defendant further observes that, in 1979, the legislature amended ORS 135.265(2) and specifically changed the person entitled to recover a security deposit from "the accused" to "the person shown by the receipt to have made the deposit." ORS 135.265(2) ; Or. Laws 1979, ch. 878, § 1. Defendant contends that, because of that amendment, ORS 135.265(2) should be interpreted as prohibiting trial courts from considering third-party security deposits when determining whether a defendant "is or may be able to pay." See ORS 151.503(3).

In making that argument, defendant acknowledges that our case law says otherwise. That is, both before and after the 1979 amendment to ORS 135.265(2), Oregon courts have recognized a legal presumption that cash bail posted on behalf of a defendant belongs to the defendant. Rosentreter v. Clackamas County , 127 Or. 531, 534, 273 P. 326 (1928) ("The money deposited by a third person in lieu of bail for one charged with a criminal offense is presumed to belong to the defendant."); State v. Baker , 165 Or. App. 565, 570-71, 998 P.2d 700, rev. den. , 330 Or. 375, 6 P.3d 1105 (2000) ("[C]ase law construing ORS 135.265(2) makes clear that the discretion of the court to withhold the return of the security deposit applies whether or not the source of the deposit was a third party."); State v. Davis , 116 Or. App. 607, 610, 843 P.2d 460 (1992) ("We are not aware of any requirement that money deposited as security by a third party be treated any differently than if it were deposited by the defendant."); State v. Grant , 44 Or. App. 671, 674, 606 P.2d 1166 (1980) ("We hold that because it was lawful for the court to regard the [third-party] deposit as defendant's and available to satisfy defendant's obligations under the judgment, it was within the court's discretion to withhold its return for payment of defendant's obligations under the judgment."). Defendant asks us to reconsider that legal presumption.³

We begin—and, as it turns out, conclude—by considering whether defendant preserved his argument for appeal.⁴ Defendant contends that he preserved that argument during his sentencing hearing, based on the following colloquy:

"[THE COURT:] Financial obligation in your case is a $1,000 fine. Ordering that you reimburse the state for the cost of court-appointed counsel. I think there's a judgment, let me look, that was previously entered. So it's $330 in attorney fees and there's a $100 bench probation assessment. That will all be taken from the security that was posted in this case, less costs.

"* * * * *

"[DEFENSE COUNSEL:] I would object to the imposition of the $330 for court-appointed attorney costs, in the absence of a finding that [defendant] has the ability to pay.

"THE COURT: I don't think I have to state it when they've posted $1,500 in security.

But I will find he has the ability to pay it because the funds are already available.

"[DEFENSE COUNSEL:] Just wasn't sure if that was his money that was posted.

"THE DEFENDANT: No, it's not. My sister paid—

"THE COURT: It's money that's available and that people post on his behalf that I can use for attorney fees.

And if that resource is available to him, then they are resources to pay the attorney fees.

"THE DEFENDANT: I can, uh—

"THE COURT: He should pay his sister back.

"THE DEFENDANT: I could pay her back.

"THE COURT: Yeah. Then he has the ability to pay.

"[DEFENSE COUNSEL:] Thank you, Judge.

"* * * * *

"THE DEFENDANT: She'll understand and I can pay her back."

(Emphasis added.)

For its part, the state does not dispute defendant's contention that he adequately preserved his claim of error. Rather, the state responds on the merits and argues that it was not error for the trial court to rely on defendant's security deposit in determining that he had the ability to pay attorney fees. Specifically, the state points out that the plain language of ORS 135.265(2) contemplates that trial courts will withhold security deposits for appropriate purposes—which, the state contends, includes the payment of a defendant's financial obligations—as follows:

"[T]he clerk of the court shall return to the person shown by the receipt to have made the deposit, unless the court orders otherwise , 85 percent of the sum which has been deposited and shall retain as security release costs 15 percent, but not less than $5 nor more than $750, of the amount deposited."

ORS 135.265(2) (emphasis added). And, in the event that we do not read the plain language of the statute as the state does, the state also provides legislative history to support its proposition that courts have the authority to withhold security deposits as the trial court did in this case.⁵

This case however, does not provide us an opportunity to consider the parties’ statutory arguments, because defendant did not preserve his statutory argument for appeal. Though the state concedes defendant's preservation argument, that concession is not binding on this court. State v. Wyatt , 331 Or. 335, 346, 15 P.3d 22 (2000) ("[N]either the state's failure to raise preservation as an issue in the Court of Appeals, nor the state's erroneous concession that the sanction issue had been preserved at trial, conferred authority on that court to consider defendant's unpreserved claim of error."). We are obligated to make our own preservation inquiry in order to conclude whether "the policies underlying the [preservation] rule have been sufficiently served." State v. Parkins , 346 Or. 333, 341, 211 P.3d 262 (2009).

The primary purposes of the preservation rule are to allow the trial court to consider a contention and correct...