State v. Mejia-Espinoza
| Decision Date | 24 December 2014 |
| Docket Number | A151633.,09C45610 |
| Citation | 341 P.3d 180,267 Or.App. 682 |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Alberto MEJIA–ESPINOZA, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
267 Or.App. 682
341 P.3d 180
STATE of Oregon, Plaintiff–Respondent
v.
Alberto MEJIA–ESPINOZA, Defendant–Appellant.
09C45610
A151633.
Court of Appeals of Oregon.
Submitted March 19, 2014.
Decided Dec. 24, 2014.
Peter Gartlan, Chief Defender, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.
Before DUNCAN, Presiding Judge, and HASELTON, Chief Judge, and WOLLHEIM, Senior Judge.
Opinion
HASELTON, C.J.
Defendant was convicted of rape in the first degree, ORS 163.375, unlawful sexual penetration in the first degree, ORS 163.411, and sexual abuse in the first degree, ORS 163.427, and sentenced to 200 months in prison. On appeal, he asserts nine assignments of error. We write only to address his ninth assignment of error, in which he contends that the trial court erred when it ordered him to pay $6,000 in court-appointed attorney fees, and we reject defendant's other contentions without further discussion. Defendant acknowledges that his claim of error is unpreserved, but asks us to review and correct the error as “an error of law apparent on the record.” ORAP 5.45(1). For the reasons that follow, we reverse the attorney fee award and otherwise affirm.
Notwithstanding a defendant's failure to object at trial, an appellate court “may consider an error of law apparent on the record.” ORAP 5.45(1). We have held that it is “plain error” for a trial court to require a defendant to pay court-appointed attorney fees in the absence of legally sufficient evidence that the defendant has the ability to pay the amount imposed. State v. Coverstone, 260 Or.App. 714, 716, 320 P.3d 670 (2014) ; see ORS 151.505(3) (a trial court may not impose costs unless the person “is or may be able to pay the costs”). “A court cannot impose fees based on pure speculation that a defendant has funds to pay the fees or may acquire them in the future.” State v. Pendergrapht, 251 Or.App. 630, 634, 284 P.3d 573 (2012). The state bears the burden of proving that a defendant “is or may be able to pay” attorney fees. State v. Kanuch, 231 Or.App. 20, 24, 217 P.3d 1082 (2009).
Here, defendant contends that the trial court erred in imposing payment of attorney fees because the record contains no information supporting a finding that he was, or would be,...
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...harmless. In addition, we conclude that, under State v. Coverstone, 260 Or.App. 714, 320 P.3d 670 (2014), and State v. Mejia–Espinoza, 267 Or.App. 682, 341 P.3d 180 (2014), rev. den., 357 Or. 164, 351 P.3d 52 (2015), the trial court plainly erred by ordering defendant to pay $8,000 in attor......
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...attorney fees, the trial court's imposition of the fees was plain error. Id. at 552-53, 401 P.3d 288.And in State v. Mejia-Espinoza , 267 Or. App. 682, 684, 341 P.3d 180 (2014), rev. den. , 357 Or. 164, 351 P.3d 52 (2015), the evidence in the record concerning the defendant's ability to pay......
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