Submitted on August 28, 2013.
Marion County Circuit Court 10C47160 Mary Mertens James, Judge.
Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.
Defendant appeals the trial court's judgment convicting and sentencing him for one count of murder with a firearm. ORS 163.115; ORS 161.610. Defendant assigns error to the trial court's imposition of attorney fees, asserting that the imposition of the 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 award and otherwise affirm.
The relevant facts are few. Defendant entered a "no contest" plea to one count of murder. The parties agreed that defendant was subject to life imprisonment with the possibility of parole after 300 months (25 years) in prison. ORS 137.635(2)(a); ORS 163.115(5)(b). They disagreed about the financial obligations the court could impose.
The prosecutor asked the trial court to sentence defendant to pay the following amounts as a money judgment: $37, 400 in attorney fees, $26, 018.09 in restitution, a $607 unitary assessment, and a $35 offense surcharge. In support of her request, the prosecutor asserted that defendant would have "some ability to pay" the requested amounts if he liquidated his assets. The prosecutor told the court that the state had "some information that the defendant does have a couple of vehicles * * * in his and his mother's names jointly, " specifically, a 1988 Suzuki Samurai and a 1991 Chevrolet pickup truck. The prosecutor also told the court that a sale of the trailer in which defendant had been living was "in the works" and "[t]here was talk of a lump sum being paid and then income of $400 a month." But, the prosecutor did not know "whose name that piece of property [was] in." In response, defense counsel told the court that, because the vehicles were over 20 years old, defendant would not get more than "a couple thousand dollars for both of them." He also told the court that the trailer belonged to defendant's mother.
Defense counsel informed the court that defendant is physically disabled as a result of a hip injury he suffered when he fell from a roof. Before being taken into custody in connection with this case, defendant's only source of income was a $670 monthly disability benefit he received from the Social Security Administration. While in custody, defendant was housed on the first floor of the jail because, according to defense counsel, he was "not supposed to be climbing stairs because of his hip problems."
Defense counsel estimated that, if defendant was able to secure a paying job in prison and was able to work the maximum number of hours available to a prisoner, defendant could earn between $300 and $600 per year. Defense counsel further estimated that, if the Department of Corrections did not collect any of those earnings for its own costs, defendant would be able to pay between $7, 500 and $15, 000 toward the $26, 018 restitution award by the time he completed his 25-year minimum term. If so, he would still owe between approximately $11, 018 and $18, 518 in restitution. Given the assumptions underlying his calculations, defense counsel contended that defendant would probably still owe more than half of the restitution after he completed his 25-year minimum term.
Defense counsel further contended that, even if defendant were released, he would still have "virtually no ability to earn any money." If defendant were released after 25 years, he would be 76 years old. His employment opportunities would be limited by his physical disability and his age. According to defense counsel, they would also be limited by defendant's lack of education and mental-health problems. Therefore, defense counsel argued, "[defendant] does not have the ability right now, and he will not have the ability in the conceivable future, realistically, for the rest of his life[, ] to pay anything more than restitution."
Over defendant's objection, the trial court ordered defendant to pay the following amounts as a money award, as the state requested: $37, 400 in attorney fees; $26, 018.09 in restitution; a $607 unitary assessment; and a $35 offense surcharge. The court told defendant:
"With respect to your attorney fees of $37, 400, the court finds that at least at this point you don't have an ability to pay that. Although it is uncertain whether you would have the ability to pay that in the future. And I say that because I don't know what money you may come into as a result ...