State v. Laune, A163483

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

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.

303 Or.App. 542

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

464 P.3d 461

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.)

303 Or.App. 543

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

303 Or.App. 544

of the sum which has been deposited and shall retain as security release costs 10 percent of the amount deposited."

464 P.3d 462

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...