State v. Laune
| Decision Date | 08 December 2021 |
| Docket Number | A163483 |
| Citation | 316 Or.App. 225,502 P.3d 261 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Daryl Lee LAUNE, Jr., Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erin J. 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 DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.
This case is before us on remand for reconsideration in light of State v. Morales , 367 Or. 222, 476 P.3d 954 (2020), in which the Supreme Court abrogated, in part, our case law governing the determination that a criminal defendant has the ability to pay court-appointed attorney fees. In our prior decision, State v. Laune , 303 Or. App. 541, 464 P.3d 459 (2020) ( Laune I ), we did not reach the merits of defendant's argument that the trial court had erred in considering funds that his sister had posted as security on his behalf, because we concluded that defendant had not preserved the alleged error and had not established that the trial court had plainly erred. On remand, we now conclude that the trial court plainly erred in assessing $330 in attorney fees. However, for the reasons that follow, we decline to exercise our discretion to correct that error. Accordingly, we again affirm.
The relevant facts are procedural and set forth in some detail in our earlier opinion. Id . at 542-43, 464 P.3d 459 ; 545-47. In brief, following defendant's arrest for violating a stalking protective order, his sister obtained his release by posting $1,500 in security. Id . at 543, 464 P.3d 459. At the conclusion of defendant's case, the trial court acknowledged the need to determine defendant's ability to pay before imposing an obligation to pay court-appointed attorney fees. Id . at 545, 464 P.3d 459 ; see ORS 161.665 (); ORS 151.505 (). In concluding that defendant had the ability to pay, the court explicitly relied on the $1,500 that his sister had deposited as funds available to defendant. Laune I , 303 Or. App. at 545, 464 P.3d 459. However, the record did not reflect that the deposited funds belonged to defendant or that the sister's deposit had carried with it a donative intent. Rather, defendant expressed his own intention to pay his sister back for the money that she had posted. Id. at 546, 464 P.3d 459.
In light of the Supreme Court's decision in Morales , there is no question that the trial court plainly erred in presuming that the $1,500 posted by defendant's sister was his for purposes of the ability-to-pay determination. As we recently observed in State v. Scott , 311 Or. App. 175, 180, 488 P.3d 803, rev. den. , 368 Or. 561, 494 P.3d 922 (2021), the Supreme Court explained in Morales that "the longstanding presumption that any funds deposited as bail or security by a third party * * * belong[ed] to the defendant was wrong because it did not give full effect to a 1979 amendment enacted by the legislature." After Morales , we noted in Scott , security funds or bail deposited by a nonspouse third party cannot be considered when determining a defendant's ability to pay attorney fees without an indication in the record that the funds were actually the defendant's own money or were deposited with donative intent. Id .
As in Scott , the trial court's consideration of the security funds in the absence of evidence that those funds either belonged to defendant or had been deposited by his sister with donative intent qualifies as plain error. Id . (the question of whether the trial court erred is determined "based on the law as it existed at the time of the appellate decision, not at the time of the disputed ruling[.]"); Id . at 179-80, 488 P.3d 803 (). The record in this case is not materially different from that in Scott ; we therefore reach the same conclusion in holding that the trial court plainly erred here.
What remains to be decided, then, is whether, in the exercise of our discretion, we should correct that error. See id . at 180, 488 P.3d 803 (). We weigh various prudential factors when considering whether to correct a plain error, including, among other factors:
"The competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court's attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way[.]"
Ailes v. Portland Meadows, Inc ., 312 Or. 376, 382 n. 6, 823 P.2d 956 (1991). In considering the policies behind the general rule of preservation, we look to whether the trial court was "presented with both sides of the issue and given an opportunity to correct any errors." Id . Among other important considerations, "preservation fosters [the] full development of the record, which aids the trial court in making a decision and the appellate court in reviewing it." Peeples v. Lampert , 345 Or. 209, 219, 191 P.3d 637 (2008). We exercise our discretion with the " ‘utmost caution’ [due to] the strong policy reasons favoring preservation." Id.
We recognize that, as in Scott , there may have been relatively little benefit to defendant objecting to the trial court's consideration of the security deposit, because our pre- Morales case law endorsed that approach. See Scott , 311 Or. App. at 181-82, 488 P.3d 803 (). What sets this case apart from Scott for us, however, is that, unlike the defendant in Scott , here, defendant has never asked us to address the trial court's ruling as plain error, much less articulated why we should do so.1 See id. at 179, 488 P.3d 803 (). And although the state also does not address the factors governing plain-error review, our assessment of the Ailes factors persuades us that the general policies of preservation outweigh any existing factors in favor of correcting the error. We therefore decline to exercise our discretion to correct the trial court's error.
In reaching that conclusion, we note that, on appeal, defendant contended that his argument was preserved through his attorney's objection to the imposition of attorney fees without a specific finding of his ability to pay, after which the trial court proceeded to make that finding based solely on the funds posted as security. But even assuming, as we did in Scott , that the trial court would have rejected the argument that defendant advances on appeal, had he at least raised the issue, the record may well have developed differently in a manner helpful to our review. That is, unlike in Scott , here there is no indication that the trial...
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