State v. Mendoza
| Citation | 401 P.3d 288,286 Or.App. 548 |
| Decision Date | 06 July 2017 |
| Docket Number | A161051. |
| Parties | STATE of Oregon, Plaintiff-Respondent v. Andres Enrique MENDOZA, Defendant-Appellant. |
| Court | Court of Appeals of Oregon |
286 Or.App. 548
401 P.3d 288
STATE of Oregon, Plaintiff-Respondent
v.
Andres Enrique MENDOZA, Defendant-Appellant.
A161051.
Court of Appeals of Oregon.
Submitted May 18, 2017.
July 6, 2017
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Keith L. Kutler, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.
ORTEGA, P. J.
Defendant waived a jury trial and pleaded guilty to two counts of attempted first-degree assault with a firearm, ORS 163.185, and one count of unlawful use of a weapon with a firearm, ORS 166.220(1)(a). In his plea petition, defendant stipulated to the sentence of 72 months' imprisonment imposed by the trial court but not to the imposition of $1,858 in court-appointed attorney fees. On appeal, he asserts that the court erred when it imposed those fees without sufficient evidence in the record to support a finding that defendant "is or may be able to pay" them. See ORS 151.505(3) ( "The court may not require a person to pay costs under this section unless the person is or may be able to pay the costs."); ORS 161.665(4) ("The court may not sentence a defendant to pay costs under this section unless the defendant
is or may be able to pay them."). Defendant acknowledges that he did not preserve the claimed error but asks us to review the trial court's imposition of court-appointed attorney fees as plain error. See ORAP 5.45(1) ("[T]he appellate court may, in its discretion, consider a plain error."). For the following reasons, we reverse the portion of the judgment imposing attorney fees and otherwise affirm.
In the absence of legally sufficient evidence that the defendant has the ability to pay the amount imposed, it is plain error for a trial court to require a defendant to pay court-appointed attorney fees. State v. Coverstone , 260 Or.App. 714, 716, 320 P.3d 670 (2014). "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). It is the state's burden to prove 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).
The court's inquiry of defendant's ability to pay attorney fees was limited to the following colloquy:
"THE COURT: Any reason to believe that you won't be able to pay back the fines and fees once you get released from custody? In other words, are you able to get a job and do those things?
"THE DEFENDANT: I'm not sure. I cannot foresee the future, but I—
"THE COURT: I understand that, but is there any reason to believe that you can't get a job? Are you able to work—
"THE DEFENDANT: Well, with these felony—
"THE COURT: No disabilities or—
"THE DEFENDANT: Oh. I will be able to work, yeah.
"THE COURT: Okay. All right. Is it your intent to get a job when you—
"THE DEFENDANT: Yes, Your Honor.
"THE COURT: Okay. I'll impose $1,858 in court-appointed attorney fees and a $200 fine."
Defendant did not object to the imposition of attorney fees. Nevertheless, in defendant's view, the trial court plainly erred because the record is devoid of anything concerning his current or future financial circumstances and the most it could have gleaned from the record is that he is able-bodied. He argues that that is insufficient and that he was and will continue to be without financial resources due to his six-year prison sentence. Also, according to defendant, the record lacks any indication that his financial circumstances will improve once he is released from prison and that, as he tried to tell the court at the sentencing hearing, his felony convictions may...
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State v. Thomas
...nonspeculative" assessment of the defendant's present or future ability to pay court-appointed attorney fees. State v. Mendoza , 286 Or. App. 548, 550, 401 P.3d 288 (2017) ("Such evidence may consist of information about the defendant's financial resources, 292 Or.App. 765educational backgr......
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...nonspeculative assessment of the defendant's present or future capacity to pay court-appointed attorney fees." State v. Mendoza , 286 Or. App. 548, 550, 401 P.3d 288 (2017). "Such evidence may consist of information about the defendant's financial resources, educational background, work his......
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