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State v. Mendoza

Court of Appeals of Oregon

July 6, 2017

STATE OF OREGON, Plaintiff-Respondent
v.
ANDRES ENRIQUE MENDOZA, Defendant-Appellant.

          Submitted May 18, 2017

         Washington County Circuit Court C151016CR D. Charles Bailey, Jr., Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Morgen E. Daniels, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Keith L. Kutler, Assistant Attorney General, fled the brief for respondent.

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

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

         Case Summary:

         In this criminal case, defendant asserts that that the trial court committed plain error by ordering him to pay $1, 858 in court appointed attorney fees when the record was limited to his responses to the court's inquiry of whether he was able bodied and intended to work when released from his six year prison sentence.

         Held:

         [286 Or.App. 549] ORTEGA, P. J.

         Defendant waived a jury trial and pleaded guilty to two counts of attempted first-degree assault with a firearm, ORS 163.185, and one count of unlawful use of a weapon with a firearm, ORS 166.220(1)(a). In his plea petition, defendant stipulated to the sentence of 72 months' imprisonment imposed by the trial court but not to the imposition of $1, 858 in court-appointed attorney fees. On appeal, he asserts that the court erred when it imposed those fees without sufficient evidence in the record to support a finding that defendant "is or may be able to pay" them. See ORS 151.505(3) ("The court may not require a person to pay costs under this section unless the person is or may be able to pay the costs."); ORS 161.665(4) ("The court may not sentence a defendant to pay costs under this section unless the defendant is or may be able to pay them."). Defendant acknowledges that he did not preserve the claimed error but asks us to review the trial court's imposition of court-appointed attorney fees as plain error. See ORAP 5.45(1) ("[T]he appellate court may, in its discretion, consider a plain error."). For the following reasons, we reverse the portion of the judgment imposing attorney fees and otherwise affirm.

         In the absence of legally sufficient evidence that the defendant has the ability to pay the amount imposed, it is plain error for a trial court to require a defendant to pay court-appointed attorney fees. State v. Coverstone, 260 Or.App. 714, 716, 320 P.3d 670 (2014). "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). It is the state's burden to prove 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).

         The court's inquiry of defendant's ability to pay attorney fees was limited to the following colloquy:

"THE COURT: Any reason to believe that you won't be able to pay back the fines and fees once you get released from custody? In other words, are you able to ...

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