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State v. Lyness

Court of Appeals of Oregon

January 3, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
KRISSTOPHER JAMES LYNESS, aka Krisstopher Lyness, Defendant-Appellant.

          Submitted April 30, 2018

          Marion County Circuit Court 16CR22232; Tracy A. Prall, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Andrew D. Robinson, 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 Powers, Judge, and Garrett, Judge pro tempore.

         Case Summary:

Defendant appeals a judgment of conviction for second-degree robbery, for which he was sentenced to 70 months' imprisonment. He assigns error to the trial court's imposition of $1, 737 in court-appointed attorney fees and, acknowledging that he did not object when the court announced it would impose the fees, asks that we review for plain error. Although the trial court made a determination on the record that defendant "is or may be able to pay" the fees based on a finding that defendant had an ability to work, generally and in prison, and was not disabled, defendant asserts that the record lacked evidence sufficient to support that determination.

         Held:

         The trial court's assessment of defendant's ability to pay the court-appointed attorney fees was not based on sufficient facts to support a reasonable inference that defendant had the ability to pay the court-appointed attorney fees or might acquire that ability in the future, and, thus, the imposition of the fees was plain error.

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

         [295 Or.App. 525] ORTEGA, P. J.

         Defendant appeals a judgment of conviction for second-degree robbery, for which he was sentenced to 70 months' imprisonment. He assigns error to the trial court's imposition of $1, 737 in court-appointed attorney fees and, acknowledging that he did not object when the court announced it would impose the fees, asks that we review for plain error. See ORS 151.505(3); ORS 161.665(4); ORAP 5.45(1). Although the trial court made a determination on the record that defendant "is or may be able to pay" the fees, defendant asserts that the record lacked evidence sufficient to support that determination. We agree with defendant and therefore 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. Mendoza,286 Or.App. 548, 549, 401 P.3d 288 (2017) (citing 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). The burden to prove that a ...


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