Washington County Circuit Court 16CR69072, 16CN05522;
(Control), Eric Butterfeld, Judge.
respondent's Motion for Summary Affrmance fled August 3,
2018, and appellant's response fled August 6, 2018.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Joanna R. Hershey, Assistant Attorney General,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Rond Chananudech, Deputy Public Defender, Offce of Public
Defense Services, for response.
DeVore, Presiding Judge, and Egan, Chief Judge, and James,
Or.App. 520] PER CURIAM.
appeals from a judgment of conviction for fourth-degree
assault constituting domestic violence and harassment, both
misdemeanors. The state moves pursuant to ORS 138.225 for
summary affirmance on the ground that the appeal does not
present a substantial question of law. We grant the motion
sentencing the trial court ordered defendant to pay a $184
court-appointed attorney fee from a security amount totaling
$7, 500 that had been previously posted. On appeal, defendant
contends that the court plainly erred in ordering him to pay
court-appointed attorney fees from the previously posted
security deposit without first finding that he had the
ability to pay those fees. At the time security was posted,
defendant signed a release agreement containing an express
condition that the security amount would be applied to fines,
fees, or court ordered financial obligations arising out of
this case or any other case involving defendant.
resolution of this case is controlled by State v.
Thomas, 292 Or.App. 756, 425 P.3d 437 (2018). In
Thomas, we held that the defendant did not
demonstrate plain error by the trial court when it imposed
$1, 600 in court-appointed attorney fees. Id. at
760-61. We rejected the argument that the trial court did not
make the statutorily required on-the-record findings
regarding the defendant's ability to pay fees given the
court's finding that the defendant had the funds
available to pay fees from the security deposit monies.
Id. at 760. Moreover, we explained that any error
was not obvious given our case law authorizing a trial court
to find that a defendant has the ability to pay
court-appointed fees when security is posted subject to the
express condition that the funds be available to pay a
defendant's financial obligations. Id. at 761-63
(citing State v. Wise, 40 Or.App. 303, 594 P.2d 1313
(1979); State v. Twitty, 85 Or.App. 98, 106, 735
P.2d 1252, rev den, 304 Or. 56 (1987); State v.
Wetzel, 94 Or.App. 426, 428-29, 765 P.2d 835 (1988)).
Thus, on review for plain error in this case, defendant's
security deposit appears to provide sufficient evidence to
support the trial court's imposition of court-appointed
attorney fees, even if a trial court, when properly presented
with questions in the first instance as [295 Or.App. 521] to
how defendant acquired the funds for a security deposit,
might reach a different result. Additionally, although
defendant raises factual questions on appeal that may not
have been raised in the trial court or in Thomas,
factual questions preclude plain-error review, and defendant
fails to meaningfully distinguish Thomas. Defendant
also fails to address the standards necessary to establish
that Thomas was plainly wrong. See State v.
Civil, 283 Or.App. 395, 388 P.3d 1185 (2017) (explaining
standards for establishing that prior case was plainly wrong
and should be overturned).
for summary affirmance granted; affirmed.
concur in the per curiam, for the reasons explained in the
concurring opinion in State v. Thomas, 292 Or.App.
756, 764, 4 ...