Opinion
13C43631 A155403.
09-23-2015
STATE of Oregon, Plaintiff–Respondent, v. Joseph Wayne KURTZ, Defendant–Appellant.
Peter Gartlan, Chief Defender, and Lindsey K. Detweiler, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael S. Shin, Assistant Attorney General, filed the brief for respondent.
Peter Gartlan, Chief Defender, and Lindsey K. Detweiler, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael S. Shin, Assistant Attorney General, filed the brief for respondent.
Before DUNCAN, Presiding Judge, and DEVORE, Judge, and FLYNN, Judge.
Opinion
DUNCAN, P.J.In this criminal case, defendant appeals, assigning error to the trial court's imposition of court-appointed attorney fees. The state concedes that the trial court erred in imposing the fees; we agree, and, therefore, we reverse the portion of the trial court's judgment that imposes the fees and otherwise affirm.
On appeal, in addition to challenging the trial court's imposition of court-appointed attorney fees, defendant challenges (1) the trial court's failure to sua sponte strike testimony of a state's witness, which, defendant contends, constituted impermissible vouching, and (2) the trial court's failure to sua sponte merge the guilty verdicts on two of the witness tampering counts, which, defendant contends, were based on violations of a single statutory provision. We reject those challenges without written discussion.
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Defendant was charged with, and convicted of, felony assault in the fourth degree, ORS 163.160 (Count 1); menacing, ORS 163.190 (Count 2); coercion, ORS 163.275 (Count 3); and tampering with a witness, ORS 162.285 (Counts 4–10). The trial court ordered defendant to serve 120 months in prison and to pay $2,440 in court-appointed attorney fees. Defendant did not object to the fees but now contends that the trial court committed plain error by imposing them and that we should exercise our discretion to review the error. See ORAP 5.45(1) (authorizing plain error review); State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990) (describing requirements for plain-error review under ORAP 5.45 ); see also Ailes v. Portland Meadows, Inc., 312 Or. 376, 382 n. 6, 823 P.2d 956 (1991) (identifying factors to be considered when determining whether to exercise discretion to correct plain error).
A trial court may order a convicted defendant to pay costs, including “a reasonable attorney fee for counsel appointed to represent the [defendant,]” only if the defendant “is or may be able to” pay them. ORS 151.505(3) ; ORS 161.665(4) ; Bacote v. Johnson, 333 Or. 28, 33, 35 P.3d 1019 (2001) (a court “must determine if the person is or, in the future, may be able to pay costs”); State v. Kanuch, 231 Or.App. 20, 24, 217 P.3d 1082 (2009) (a court “lacks authority to sentence a defendant to pay costs unless it has determined that the defendant ‘is or may be able to pay them’ ” (quoting ORS 161.665(4) )). Thus, a trial court cannot impose court-appointed attorney fees “based on a record that is silent regarding the defendant's ability to pay those fees.” State v. Pendergrapht, 251 Or.App. 630, 634, 284 P.3d 573 (2012). There must be evidence that the defendant “is or may be able to pay” the fees. Id. (internal quotations omitted). The state bears the burden of presenting such evidence. Id. at 635 n. 6, 284 P.3d 573 (“[T]he state bears the burden of proving that a defendant is or may be able to pay attorney fees. A defendant is not required to prove that he or she is unable to pay them.” (Citing Kanuch, 231 Or.App. at 24, 217 P.3d 1082.)).
Imposition of court-appointed attorney fees based on a record that is silent regarding the defendant's ability to pay the fees constitutes plain error. State v. Coverstone, 260 Or.App. 714, 716, 320 P.3d 670 (2014). We have exercised our discretion to review such plain errors in cases like this one, where the fees are substantial and the defendant was sentenced to a lengthy prison term. E.g., State v. Nickerson, 272 Or.App. 155, 159–60, 354 P.3d 758 (2015) (reversing $1,500 in fees where the defendant was sentenced to 70 months in prison); State v. Fleet, 270 Or.App. 246, 247, 347 P.3d 345 (2015) (reversing $980 in fees where the defendant was sentenced to 60 months in prison); State v. Wells, 269 Or.App. 528, 529, 345 P.3d 498, rev. den., 357 Or. 551 (2015) (reversing $1,600 in fees where the defendant was sentenced to 70 months in prison); State v. Callentano, 263 Or.App. 190, 191–92, 326 P.3d 630 (2014) (reversing $2,500 in fees where the defendant was sentenced to 90 months in prison); cf. State v. Baco, 262 Or.App. 169, 171, 324 P.3d 491, rev. den., 355 Or. 751, 331 P.3d 1010 (2014) (declining to exercise plain error review where the trial court imposed $510 in attorney fees, the defendant's probationary sentence did not prevent him from working, and the defendant had agreed to the state's recommendation of the same amount of attorney fees with regard to a different charge sentenced at the same time).
Here, the trial court sentenced defendant to 120 months in prison and imposed $2,440 in court-appointed attorney fees. Defendant asserts, and the state does not dispute, that the record does not contain sufficient evidence from which the trial court could determine that defendant “is or may be able to pay” the fees. We agree, and we conclude that, under the cases cited above, the trial court erred in imposing the fees, the error constitutes plain error, and it is appropriate for us to exercise our discretion to correct it.
Portion of judgment requiring defendant to pay attorney fees reversed; otherwise affirmed.