State v. Zepeda

• Decision Date: 14 October 2015
• Docket Number: 13C45352,A155303 Control,11C47701,11C44396,A155305.,A155304
• Citation: 274 Or.App. 401,360 P.3d 715
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Jamie Marie ZEPEDA, Defendant–Appellant.
• Court: Oregon Court of Appeals

274 Or.App. 401
360 P.3d 715

STATE of Oregon, Plaintiff–Respondent,
v.
Jamie Marie ZEPEDA, Defendant–Appellant.

11C44396
11C47701
13C45352
A155303 Control
A155304
A155305.

Court of Appeals of Oregon.

Argued and Submitted March 30, 2015.
Decided Oct. 14, 2015.

360 P.3d 716

Kyle Krohn, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Opinion

TOOKEY, J.

274 Or.App. 402

In these consolidated criminal cases, defendant appeals from judgments convicting her of one count of unlawful possession of methamphetamine, ORS 475.894, and three counts of failure to appear in the first degree, ORS 162.205. Defendant assigns error to the trial court's imposition of court-appointed attorney fees, asserting that the imposition of those fees violates ORS 161.665(4), which provides that a court may not sentence a defendant to pay attorney fees for court-appointed counsel “unless the defendant is or may be able to pay them.” For the reasons explained below, we agree with defendant and, therefore, we reverse the attorney fee awards and otherwise affirm.

The relevant facts are undisputed. At the sentencing hearing, to support an argument that defendant should be sentenced to probation, defense counsel provided the trial court with the following background information about defendant. In 2010, after defendant's mother had passed away, defendant became homeless, had a falling out with her family, and began using methamphetamine. In 2011, she was arrested for unlawful possession of methamphetamine and repeatedly failed to appear for her court dates on that charge. That same year, defendant was married and traveled with her husband to Mexico, where she stopped using methamphetamine. In February 2013, defendant returned to Oregon to reconnect with her family and stayed with her parents-in-law. In August 2013, she was arrested on the outstanding warrants and for failure to appear. That final arrest is what led to the sentencing proceeding for which defendant now seeks review.

During sentencing proceedings, the state requested a sentence of 18 months in the Department of Corrections and court-appointed attorney fees on all counts. Defense counsel requested a sentence of 24 months of probation, and, in support of that request, explained to the trial court that, “although in 2011, she was sort of a chronic failure to appear individual things have improved for her [.]” Defense counsel continued, “She is no longer homeless and her health has improved, both as a result of getting off the drugs, but she is also now in a home where she can get food and clothing and that sort of thing.”

274 Or.App. 403

Later, in response to the prosecutor's request for attorney fees, defense counsel argued that those fees should not be imposed. Citing State v. Pendergrapht,251 Or.App. 630, 284 P.3d 573 (2012), defense counsel argued that the trial court was required “to make a finding of—take into consideration all of her financial resources, * * * that she would have the ability to pay the court-appointed attorney fees.” Defense counsel informed the trial court that, “[a]t this point [defendant] does not have any employment, so we'd have to argue to the court—suggest to the court—that she will not have the ability to pay the full amount of court-appointed attorney fees.” The trial judge stated:

“I will find you have the ability to pay that. There are presumptions in other areas of law of an ability to perform minimum wage work, and that can be conducted * * * for the length of time that * * * [there] is a money judgment.”

360 P.3d 717

The trial court sentenced defendant to six months in the Marion County jail and imposed court-appointed attorney fees in the total amount of $2,400, $600 on each of defendant's four convictions.

On appeal, defendant argues that the trial court erred in imposing court-appointed attorney fees, in violation of ORS 161.665(4), because the trial court impermissibly shifted the burden of proof to defendant to show she cannot pay the court-appointed attorney fees by relying on a presumption that defendant could perform minimum wage work. Additionally, defendant argues that there is insufficient evidence in the record that she has, or may have, the ability to pay them.

The state responds by arguing that nothing in the record suggests that defendant is unable to work. The state argues that the trial court satisfied the requirement of ORS 161.665(4)because it “expressly found on the record” that defendant is or may be able to pay the court-appointed attorney fees. Furthermore, the state argues that the trial court looked at the record, had the opportunity to observe defendant, and considered her objection that she was unable to pay.

We agree with defendant. By relying on a presumption that defendant could perform minimum wage work, the trial court impermissibly shifted the burden of proof to

274 Or.App. 404

defendant to show that she cannot pay the court-appointed attorney fees. Without that impermissible presumption, there is insufficient evidence in the record that defendant has, or may have, the ability to pay those fees, and thus, the court erred in imposing attorney fees.

ORS 161.665(4)provides:

“The court may not sentence a defendant to pay costs under this section unless the defendant is or may be able to pay them.In determining the amount and method of payment of costs, the court shall take account of the financial resources of the defendant and the nature of the burden that payment of costs will impose.”

(emphasis added). ORS 161.665(4)“plainly states” that a court “lacks authority” to impose court-appointed attorney fees “unless it has determined that the defendant ‘is or may be able to pay them.’ ” State v. Kanuch,231 Or.App. 20, 24, 217 P.3d 1082 (2009)(quoting ORS 161.665(4)). “There must be some information [in the record] from which the court can find the statutorily required factual predicate to imposition of fees: that the defendant ‘is or may be able to pay’ them.” Pendergrapht,251 Or.App. at 634, 284 P.3d 573(quoting ORS 161.665(4)).¹“A court cannot perform that task if it has no information regarding the defendant's existing or potential financial resources.” Id.(emphasis added). Additionally, “[t]he requirement cannot be satisfied by a speculative possibility that a defendant may receive a gift, inheritance, or other windfall.” State v. Wallace,258 Or.App. 800, 804, 311 P.3d 975 (2013). Finally, “the state bears the burden of proving that a defendant is or may be able to pay attorney fees.” Pendergrapht,251 Or.App. at 635 n. 6, 284 P.3d 573(citing Kanuch,231 Or.App. at 24, 217 P.3d 1082(explaining that the state “bears the burden of persuasion and the obligation to make a record” concerning a defendant's ability to pay attorney fees)).

At the outset, we reject the state's argument that the trial court did not err “because nothing in the record suggested

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