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State v. Villalta

Court of Appeals of Oregon

July 18, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
EDWARD FRANK VILLALTA, Defendant-Appellant.

          Submitted December 21, 2017

          Washington County Circuit Court 16CR28988, Theodore E. Sims, 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 Michael A. Casper, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

         Case Summary: Defendant was convicted of second-degree robbery and second-degree theft, sentenced to 70 months' imprisonment, and ordered to pay $2, 020 in court-appointed attorney fees. The trial court ordered defendant to pay the fees based on its inquiry that elicited defendant to say that he was in good health and willing to repay the fees when release from prison. Defendant asserts that those facts are insufficient to show that he "is or may be able," ORS 151.505(3); ORS 161.665(4), to pay court-appointed attorney fees. Held: The trial court erred. Defendant's health and willingness to work supports nothing more than a speculative assessment of his present or future capacity to pay more than $2, 000 in court-appointed attorney fees after serving almost six years in prison.

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

         [292 Or. 812]ORTEGA, P. J.

         In this criminal case, defendant was convicted of second-degree robbery and second-degree theft, sentenced to 70 months' imprisonment, and ordered to pay $2, 020 in court-appointed attorney fees. In his sole assignment of error, defendant challenges the trial court's order, to which he objected below, that he pay the attorney fees. He asserts that there is no evidence in the record that he "is or may be able" to pay those costs of his defense. 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."). We agree and reverse.

         After defendant objected to the imposition of attorney fees, the trial court conducted the following inquiry into his ability to pay:

"THE COURT: [Defendant], what's your employment history?
"THE DEFENDANT: I haven't worked for three years. I was a stay-at-home dad with my daughters. I became homeless. I lost my kids. I lost their mom to drug addiction, so it was just me to care for them. I couldn't care for them. They went to their grandmother. I just want to say that I just-I mean, I'll try to pay for them, you know, when I get out. I mean, if there's-what's right is right is right, you know what I mean? You know? I just don't want to-but I just wanted to say that I'm guilty of the theft, I just-I mean, even though they found me guilty of Robbery I don't understand why I'm guilty of Robbery.
"THE COURT: You're in good ...

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