Submitted May 18, 2017
County Circuit Court C151016CR D. Charles Bailey, Jr., Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Morgen E. Daniels, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Keith L. Kutler, Assistant Attorney General,
fled the brief for respondent.
Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.
of judgment requiring defendant to pay attorney fees
reversed; otherwise affirmed.
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
Or.App. 549] ORTEGA, P. J.
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.
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
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 ...