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State v. Below

Court of Appeals of Oregon

July 23, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
MITCHELL ALAN BELOW, Defendant-Appellant

Submitted June 18, 2014

Jackson County Circuit Court. 111175FE. Timothy C. Gerking, Judge.

Peter Gartlan, Chief Defender, and Anne Fujita Munsey, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Matthew J. Preusch, Assistant Attorney General, filed the brief for respondent.

Before Duncan, Presiding Judge, and Wollheim, Judge, and Edmonds, Senior Judge.

OPINION

Page 330

[264 Or.App. 385] DUNCAN, P. J.

Defendant was convicted of murder and sentenced to life in prison, with the possibility of parole after 25 years. He appeals, raising four assignments of error. In his first and second assignments, he asserts that the trial court erred in admitting certain evidence. We reject those assignments without published discussion. In his third and fourth assignments, he asserts that the court erred in imposing $18,000 in court-appointed attorney fees and an $18,000 indigent contribution. Defendant acknowledges that those claims of error are unpreserved but asks us to review and correct them as " plain error," that is, as errors of law " apparent on the record." ORAP 5.45(1).[1] For the reasons explained below, we agree with defendant that the trial court erred in imposing the

Page 331

challenged financial obligations, that the errors are plain, and that it is appropriate for us to exercise our discretion to correct them.

Under ORS 151.505 and ORS 161.665, a trial court may order a defendant to pay court-appointed attorney fees and other costs. However, in order for a court to do so, there must be evidence that the defendant " is or may be able to pay" the fees and costs. ORS 151.505(3) (so providing); ORS 161.665(4) (same). " 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); see State v. Kanuch, 231 Or.App. 20, 22, 217 P.3d 1082 (2009) (trial court erred in imposing $15,000 in court-appointed attorney fees on the defendant, who had been convicted of aggravated murder and sentenced to life in prison, with the possibility of parole after 25 years, where there was no evidence that the defendant was or might be able to pay the fees). The state bears the burden of proving that a defendant is or may be able to pay fees. State v. Coverstone, 260 Or.App. 714, 716, 320 P.3d 670 (2014).

In this case, defendant was charged with a murder committed in 2011, and he applied for court-appointed [264 Or.App. 386] counsel. The trial court waived the $20 application fee and appointed counsel for defendant. Defendant's case proceeded to a bench trial, where his defense was that he killed the victim as a result of an extreme emotional disturbance. See ORS 163.135 (providing for extreme emotional disturbance defense to murder). In support of his defense, defendant presented an expert witness who testified about defendant's history of depression and alcohol abuse, among other things. The trial court found defendant guilty and sentenced him to life in prison, with the possibility of parole after 25 years. At sentencing, the court ordered defendant to pay $673 in assessments, $4,000.73 in restitution, a $9,327 fine, $18,000 in court-appointed attorney fees, and an $18,000 indigent contribution.[2] The court did not address whether defendant was able to pay the ordered amounts or might be able to pay them in the future.

As mentioned, on appeal, defendant asserts that the trial court committed plain error by ordering him to pay the court-appointed attorney fees and indigent contribution.[3] According to defendant, " the record contains no evidence to support a finding that defendant had the ability to pay his attorney fees and other expenses incurred in his defense." He contends that the only evidence regarding his ability to pay was that he was 45 [4] years old, had a history of underemployment and unemployment due to his depression and alcohol abuse, and was facing a sentence of life imprisonment.

In response, the state asserts that the trial court did not commit plain error because " nothing in this record tends to show that the defendant was unemployable." " To the [264 Or.App. 387] contrary," the state asserts, " the record shows that defendant had held good jobs in the past." In support of its assertion, the state quotes a portion of the testimony of defendant's expert witness where ...


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