Submitted March 19, 2014.
Marion County Circuit Court. 09C45610. Vance D. Day, Judge.
Peter Gartlan, Chief Defender, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Ryan Kahn, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Wollheim, Senior Judge.
[267 Or.App. 683] HASELTON, C. J.
Defendant was convicted of rape in the first degree, ORS 163.375, unlawful sexual penetration in the first degree, ORS 163.411, and sexual abuse in the first degree, ORS 163.427, and sentenced to 200 months in prison. On appeal, he asserts nine assignments of error. We write only to address his ninth assignment of error, in which he contends that the trial court erred when it ordered him to pay $6,000 in court-appointed attorney fees, and we reject defendant's other contentions without further discussion. Defendant acknowledges that his claim of error is unpreserved, but asks us to review and correct the error as " an error of law apparent on the record." ORAP 5.45(1). For the reasons that follow, we reverse the attorney fee award and otherwise affirm.
Notwithstanding a defendant's failure to object at trial, an appellate court " may consider an error of law apparent on the record." ORAP 5.45(1). We have held that it is " plain error" for a trial court to require a defendant to pay court-appointed attorney fees in the absence of legally sufficient evidence that the defendant has the ability to pay the amount imposed. State v. Coverstone, 260 Or.App. 714, 716, 320 P.3d 670 (2014); see ORS 151.505(3) (a trial court may not impose costs unless the person " is or may be able to pay the costs" ). " 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). The state bears the burden of proving 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).
Here, defendant contends that the trial court erred in imposing payment of attorney fees because the record contains no information supporting a finding that he was, or would be, able to pay a $6,000 attorney fee. Specifically, defendant notes that the record shows that he was, and will continue to be, impoverished, and that he was sentenced to 200 months in prison. The state argues that the court did not " plainly err," because there was evidence in the record that defendant had done " [f]ield work, picking different kinds of fruits[,]" and that he had been a firefighter.
[267 Or.App. 684] We conclude that the trial court plainly erred, because the record does not contain sufficient evidence to support a finding that defendant was or might be able to pay the court-appointed attorney fees. There is no evidence that, as of the time of sentencing, defendant possessed assets sufficient to satisfy the award of fees or that he would receive income during his lengthy incarceration that could be applied toward that obligation. Accord State v. Baco, 262 Or.App. 169, 171, 324 P.3d 491, rev den, 355 Or. 751, 331 P.3d 1010 (2014) (declining to exercise discretion to correct imposition of $510 in attorney fees because the amount was not substantial given that the defendant's probationary sentence did not prevent him from working); State v. Eshaia, 253 Or.App. 676, 680-81, 291 P.3d 805 (2012) (the court did not err in imposing $400 in attorney fees because there was evidence that the defendant received disability income). 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.
See State v. Below, 264 Or.App. 384, 388, 332 P.3d 329 (2014) (concluding that, although there was evidence that the defendant had worked in the past, the evidence in the record was too speculative that he would be able to pay the attorney fees).
We further determine that it is appropriate to exercise our discretion pursuant to Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 382 n 6, 823 P.2d 956 (1991), to correct that error. In determining whether to exercise our Ailes discretion, we consider, among other things, " the gravity of the error; the ends of justice in the particular case; how the error came to the court's attention; and whether the policies ...