State v. Tiscornia

• Citation: 358 P.3d 326,272 Or.App. 753
• Decision Date: 12 August 2015
• Docket Number: A155368.,CM1320811
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Mark Stephen TISCORNIA, Defendant–Appellant.
• Court: Court of Appeals of Oregon

272 Or.App. 753

358 P.3d 326

STATE of Oregon, Plaintiff–Respondent

v.Mark Stephen TISCORNIA, Defendant–Appellant.

CM1320811

A155368.

Court of Appeals of Oregon.

Submitted June 25, 2015.

Decided Aug. 12, 2015.

Peter Gartlan, Chief Defender, and Erica Herb, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

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

Before DUNCAN, Presiding Judge, and LAGESEN, Judge, and FLYNN, Judge.

Opinion

DUNCAN, P.J.

Defendant, who was convicted of first-degree burglary and possession of methamphetamine and sentenced to 36 months in prison, challenges the trial court's imposition of $980 in court-appointed attorney fees. He argues that the trial court erred in ordering him to pay those attorney fees without making any determination—and where the record is silent—as to whether he “is or may be able” to pay those costs of his defense. 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 his claim of error but urges us to review and correct the error as an “error of law apparent on the record.” ORAP 5.45(1) ; State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990) (describing requirements for plain-error review under ORAP 5.45(1) ).

In response, the state argues that the trial court “did not err, let alone plainly err, by imposing fees, because the record demonstrates that defendant had been employed two years prior to his arrest.” According to the state, defendant “is therefore employable and may be able to pay the relatively small amount of $980 at some point in the future.”

The state's argument notwithstanding, this case cannot be meaningfully distinguished from others in which we have concluded that the trial court plainly erred by imposing attorney fees in the absence of any evidence that a defendant “is or may be able” to pay them.See, e.g., State v. Ramirez–Hernandez, 264 Or.App. 346, 349, 332 P.3d 338 (2014) (explaining that, “although $400 may not be a substantial amount to pay for some defendants, it is for this defendant”; “while there is some speculative evidence that defendant might find work in the future, the actual evidence is to the contrary”). The actual evidence in this case—that defendant was “working on houses, cleaning them” for a specific person “a couple of years ago”—does not give rise to any reasonable inference about defendant's financial resources or employability at the time of sentencing or in the future.

See State v. Mejia–Espinoza, 267 Or.App. 682, 684, 341 P.3d 180 (2014), rev. den., 357 Or. 164, 351 P.3d 52 (2015) (“Although the record contains some evidence that defendant worked in the past, as a field worker and as a firefighter, there is no evidence as to (1) defendant's historic earnings from such work and (2) whether, given the nature of defendant's criminal convictions and the length of his incarceration, such employment (including, especially, as a firefighter) will be plausibly available to defendant following his release.”). Thus, we conclude, as we did in Ramirez–Hernandez and Mejia–Espinoza, that the trial court plainly erred in imposing attorney fees on a record that does not include any evidence that defendant “is or may be able” to pay them.

The remaining question is whether we should exercise our discretion to correct the error. See Ailes v. Portland Meadows, Inc., 312 Or. 376, 382 n. 6, 823 P.2d 956 (1991) (setting out a nonexclusive list of factors for a court to consider when deciding whether to exercise discretion to correct plain error). The state contends that the imposition of fees, even if plainly erroneous, does not merit reversal for reasons of judicial economy—including that, “to the extent any error significantly harmed defendant, relief is available from the trial court.” That is, the state contends that, “if defendant is, in fact, unable to pay the $980, defendant may ‘petition the court for remission of the payment of costs or any unpaid portion of the costs' pursuant to ORS 151.505(4).”¹

In several published decisions, we have expressly identified and rejected that same argument. See, e.g., State v. Williams, 271 Or.App. 693, 694, 352 P.3d 742 (2015) (exercising discretion to correct plain error in imposing attorney fees, over the state's objection that “defendant could seek relief from paying the fees if it imposes a ‘manifest hardship,’ ORS 161.665(5) ”); Ramirez–Hernandez, 264 Or.App. at 349, 332 P.3d 338 (exercising discretion to correct plain error in imposing attorney fees, over “the state's suggestion that the error is not grave because defendant could petition the court to reduce or eliminate the fees if they ultimately create a substantial hardship”); State v. Coverstone, 260 Or.App. 714, 717, 320 P.3d 670 (2014) (exercising discretion to correct the same plain error,...