Bacote v. Johnson

7 P.3d 729, 169 Or. App. 44, 2000 Ore. App. LEXIS 1136

• Court: Court of Appeals of Oregon
• Decided: July 12, 2000
• Docket: 98-06-29,826M; CA A105109
• Status: Published

Opinions

HASELTON, J.

Petitioner appeals from a judgment denying post-conviction relief and requiring him to pay $975 as the cost of his court-appointed counsel. ORS 151.505(1).¹ We reject, without discussion, petitioner’s challenge to the denial of post-conviction relief and write only to address petitioner’s argument on appeal that the trial court erroneously imposed costs under ORS 151.505(1) because it “made no determination on the record regarding whether Appellant actually had adequate financial resources to pay the fees.” As explained below, we conclude that, because petitioner did not ask the trial court to make such a determination and did not object to the lack of such a determination, the alleged “error” was not preserved. Accordingly, we affirm.

The facts are not disputed. Petitioner filed his petition for post-conviction relief in June 1998. Petitioner requested court-appointed counsel. His affidavit in support of his request stated that he had cash savings of $60, owned no property, had no monthly income but had $40 of monthly expenses. Based on his request, the trial court appointed counsel for petitioner. At the end of the trial, after the court denied post-conviction relief, the following colloquy occurred:

“THE COURT: I’m going to enter an order at this time denying the petition and entering judgment in favor of the [State], ordering that [petitioner] reimburse the State for his attorney fees. And that’s — what’s the amount [petitioner’s counsel]?

“[PETITIONER’S COUNSEL]: $975.00.

“THE COURT: $975.00. Anything else that needs to be placed on the record?

“[COUNSEL]: Yes Your Honor. On behalf of [petitioner] I object to the imposition of the $975.00 in attorney reimbursement fees. The basis for my objection is that there’s been no showing that [petitioner] has the ability to pay. There has not even been an inquiry as to whether he has the ability to pay that he — without undue hardship. He is indigent, he has been declared indigent by this Court. He [is] scheduled to be in the institution for still some period of time and he is — and those rare occasions when he is employed he is making maybe less than one twentieth of the minimum wage. Consequently — and that money still has to go to pay for shaving supplies, health care products, any extras (INAUDIBLE), tennis shoes, things of that nature. Consequently, we believe that he is unable to pay and that it should not be imposed.

“THE COURT: Your objection is noted. I’ll have — indicate copies of the order and judgment need to be sent to the parties. Anything else we need to address?”

Ultimately, the court entered a judgment including an award of $975 as the cost of petitioner’s court-appointed counsel.

On appeal, petitioner argues, inter alia, that the trial court was obligated to make an express “determination on the record [of] whether [petitioner] actually had adequate financial resources to pay” before imposing an award of costs under ORS 151.505. As support for that proposition, petitioner invokes ORS 151.505(4), which provides, in part:

“The court may not order a person to pay costs under this section unless the person is or may be able to pay the costs. In determining the amount and method of payment of costs, the court shall take account of the financial resources of the person and the nature of the burden that payment of costs will impose. The determination of the ability of a person to pay costs and the amount of costs to be paid shall be subject to the guidelines and procedures issued by the State Court Administrator under ORS 151.487.”

We do not reach the merits of petitioner’s present argument because petitioner did not raise and preserve that objection in the trial court. See ORAP 5.45(2). In particular, petitioner did not request any express finding regarding his ability to pay and did not object to the trial court’s failure to make such a determination. Rather, as the colloquy set out above demonstrates, petitioner’s counsel’s only objection was that, as a substantive matter, the facts before the trial court did not “show” that petitioner had the ability to pay without undue hardship. Counsel never argued that the court was obligated, as a procedural matter, to render on-the-record findings.²

We have consistently emphasized the two fundamental purposes underlying appellate preservation of error requirements:

“First, the requirement that an issue be presented to the lower tribunal in order for it to be raised on appeal serves to prevent error. If the first tribunal is given the opportunity to make a ruling, its ruling may well be correct. Relatedly, it would be a disservice to the economy of the process to require the lower tribunal to conduct further proceedings in order to rectify an error that it was never given the initial opportunity to avoid.

“The second reason is that requiring a party to present its issues at each adjudicative level is essential to a fair process for the other parties and participants. Generally, the opportunity to respond at the appellate level does not cure the denial of that opportunity in trial court and agency proceedings, where all of the factual and much of the legal development of cases must occur.” J. Arlie Bryant, Inc. v. Columbia River Gorge Comm., 132 Or App 565, 568, 889 P2d 383, rev den 321 Or 47 (1995).

See Davis v. O’Brien, 320 Or 729, 737, 891 P2d 1307 (1995) (preservation requirements are intended to ensure that “the positions of the parties are presented clearly to the initial tribunal and that parties are not taken by surprise, misled, or denied opportunities to meet an argument”). See also State v. Doern, 156 Or App 566, 579, 967 P2d 1230 (1998), rev den 328 Or 666 (1999) (Landau, J., dissenting) (describing preservation inquiry as: “Did the trial court have a realistic opportunity to make the right call?”).

Here, consideration of petitioner’s belatedly developed objection would offend the first of those paramount principles: If trial counsel had requested that the trial court make an explicit determination as to petitioner’s ability to pay, the court easily could have done so. But the trial court was never given that opportunity.³

State v. Bucholz, 317 Or 309, 855 P2d 1100 (1993), is closely analogous. There, the defendant argued on appeal that the trial court erred in failing to make express findings on the record supporting imposition of consecutive sentences under ORS 137.123(4), as required by State v. Racicot, 106 Or App 557, 809 P2d 726 (1991). The Supreme Court rejected that argument, noting that “the record in this case discloses that * * * no objection to lack of findings or request for findings was entered by defendant.” Bucholz, 317 Or at 320. Consequently, the court concluded that the alleged error was not preserved:

“Defendant would have an appellate court reverse for absence of findings even though, had the matter been called to the sentencing court’s attention, applicability of [the statute] might easily have been established. To preserve an error in the face of a possibility that the statute expressly permits consecutive sentences in this situation at hand, a defendant who objects to lack of express findings * * * must place that objection on the record at the time of sentencing.” Id. at 321.

See State v. Ramsey, 156 Or App 529, 534, 967 P2d 575 (1998), rev den 328 Or 365 (1999) (applying Bucholz in holding that the defendant had failed to preserve challenge to trial court’s failure to make specific findings of fact supporting imposition of consecutive sentences).

So too here. The alleged error was not preserved.⁴

Affirmed.

1 ORS 151.505(1) provides:

“At the conclusion of a case or matter in which the first accusatory instrument or petition in the trial court was filed after January 1,1998, and in which the court appointed counsel to represent a person, a trial or appellate court may include in its judgment an order that the person repay in full or in part the administrative costs of determining the eligibility of the person for appointed counsel and the costs of the legal and other services that are related to the provision of appointed counsel.”

Petitioner’s original pro se petition was filed on June 24, 1998. Accordingly, in this case, unlike in Alexander v. Johnson, 164 Or App 235, 990 P2d 929 (1999), ORS 151.505(1) applies.

2 Petitioner does not contend that the lack of such an express determination somehow constitutes “error apparent on the face of the record.” ORAP 5.45(2). See Ailes v. Portland Meadows, Inc., 312 Or 376, 823 P2d 956 (1991) (describing contours of “plain error” doctrine).

3 We imply no view as to whether, under ORS 151.505 or principles of appellate reviewability, the trial court was obligated to make such an express determination. Compare McCarthy v. Oregon Freeze Dry, Inc., 327 Or 84, 957 P2d 1200, on recons 327 Or 185, 957 P2d 1200 (1998) (where court awards discretionary statutory attorney fees pursuant to ORS 20.075 and an objection to fees is raised, “prudential and practical considerations” of meaningful appellate review require awarding court to render explanatory findings so as “to assist the appellate court in carrying out a meaningful review of the competing arguments of the parties and the attorney fee decision below”) with State v. Hart, 329 Or 140, 145-46, 985 P2d 1260 (1999) (ORS 137.106(2), which requires trial courts to “take into account” three factors in determining whether to order restitution, does not require trial court to make explicit determinations or findings as to the statutory factors).

We note, parenthetically, that Hart was decided after State v. Jones, 124 Or App 489, 863 P2d 480 (1993), which the dissent invokes, 169 Or App at 52-53, and involved the same restitution statute. Indeed, our opinion in Hart, which the Supreme Court reversed in part, cited Jones with approval. See State v. Hart (A92712), 149 Or App 552, 555, 944 P2d 980 (1997).

4 The dissent disagrees with our determination that the alleged error was not preserved but does not identify how this case can be meaningfully distinguished from Bucholz, et al. The dissent posits that ORS 151.505 facially requires a trial court to make an explicit, on-the-record determination as to a petitioner’s ability to pay and that, once that statute’s application is challenged in any way, the error in failing to make such a determination is necessarily preserved. See 169 Or App at 51-52. Even if the dissent’s major, “the statute requires it,” premise were correct, but see note 3 above, a trial court’s mere failure to comply with such a statutorily derived requirement does not, without more, preserve the alleged error. See Bucholz.