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State v. Willis

Court of Appeals of Oregon

May 3, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
ROBERT LITLETON WILLIS, Defendant-Appellant.

          Submitted March 29, 2017

         Marion County Circuit Court 14C45861; Thomas M. Hart, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Joshua B. Crowther, Chief Deputy Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jordan R. Silk, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.

         Case Summary:

         Defendant appeals from a judgment of conviction, assigning error solely to the trial court's imposition of $1, 664 in attorney fees under ORS 151.505(3) and ORS 161.665(4) for the costs of defendant's court-appointed counsel. He acknowledges that he did not preserve the assigned error, but requests plain error review. In response, the state argues that defendant assented to the state's recommended fee award and that, for that reason, any error is either invited or not plain.

         Held:

         Defendant did not affirmatively represent to the trial court that a fee award would be appropriate; instead, he stood by passively as the court imposed the award. Therefore, defendant did not invite any error. Under the circumstances of this case, the trial court erred when it imposed the fee award in the final judgment and that error was plain.

         Portion of judgment requiring defendant to pay attorney fees reversed; otherwise affirmed.

          LAGESEN, J.

         Defendant appeals from a judgment of conviction, assigning error solely to the trial court's imposition of $1, 664 in attorney fees under ORS 151.505(3) and ORS 161.665(4) for the costs of defendant's court-appointed counsel. He acknowledges that he did not preserve the assigned error, but requests that we review- and reverse-for plain error, as we have done in a host of other cases. See, e.g., State v. Runnels, 283 Or.App. 512, 390 P.3d 1120 (2017), State v. Coverstone. 260 Or.App. 714, 320 P.3d 670 (2014). In response, pointing to our decisions in State v. Wehr. 275 Or.App. 528, 365 P.3d 148 (2015), State v. Perez. 275 Or.App. 566, 365 P.3d 141 (2015); and State v. Cook. 267 Or.App. 776, 341 P.3d 848 (2014), the state argues that defendant assented to the state's recommended fee award and that, for that reason, any error is either invited or not plain. For the reasons that follow, we conclude that defendant did not invite the error, that the error is plain, and that we should exercise our discretion to review and correct the error.

         The relevant facts are largely procedural. Defendant was charged with a number of offenses. The trial court appointed counsel for defendant. At the same time, as authorized by ORS 151.487(1), [1] the court determined that defendant had the financial capacity to contribute $1, 750 toward the cost of his appointed counsel and signed a limited judgment ordering defendant to pay that amount, along with an additional $20 for the processing of his application for court-appointed counsel, to the state "immediately."[2]

         Later, defendant and the state reached a plea agreement, under which defendant agreed to plead guilty to 10 of the 17 charges against him in exchange for the state's agreement to dismiss the remaining counts and cap its sentencing recommendation at 600 months' incarceration total. Apart from the parties' agreement that the state would not recommend more than 600 months' incarceration total, the parties did not agree on a sentencing recommendation, and each party submitted its own sentencing recommendation to the court. The state's sentencing recommendation included a suggestion that the court impose $1, 664 in court-appointed attorney fees in its judgment, along with $2, 000 in fines. Defendant's recommendation omitted any suggestion that the court should order defendant to pay any additional amounts of attorney fees at sentencing. At sentencing, neither the state nor defendant raised the issue of attorney fees, and the trial court made no on-the-record determination that defendant had the ability to pay $1, 664 in attorney fees beyond the $1, 750 that the court initially determined ...


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