State v. Nickerson

354 P.3d 758, 272 Or. App. 155, 2015 Ore. App. LEXIS 811
CourtCourt of Appeals of Oregon
DecidedJuly 1, 2015
Docket131832; A154909
StatusPublished
Cited by8 cases

This text of 354 P.3d 758 (State v. Nickerson) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Nickerson, 354 P.3d 758, 272 Or. App. 155, 2015 Ore. App. LEXIS 811 (Or. Ct. App. 2015).

Opinion

GARRETT, J.

Defendant appeals a judgment of conviction for one count of second-degree assault, ORS 163.175, and one count of tampering with physical evidence, ORS 162.295. We affirm those convictions without written discussion and write only to address defendant’s second assignment of error, which challenges the trial court’s imposition of court-appointed attorney fees. Defendant concedes that this assignment of error is unpreserved but requests that we review it as plain error. We conclude that the trial court plainly erred and exercise our discretion to correct the error. We therefore reverse and remand.

The trial court sentenced defendant to 70 months in prison and imposed a court-appointed attorney fee in the amount of $1,500. During sentencing proceedings, defendant disputed the state’s assertion that he had broken his hand while punching someone during the assault and instead stated that the injury had occurred “at work.” On appeal, defendant raises an unpreserved challenge to the imposition of the attorney fee on the ground that “[t]he record contains no evidence of defendant’s ability to pay upon which to base a finding.” An unpreserved error is reviewable as “plain error” if “(1) the error is one of law; (2) the legal point is obvious— that is, not reasonably in dispute; and (3) to reach the error, we need not go outside the record or choose between competing inferences to find it.” State v. Fernaays, 263 Or App 407, 413, 328 P3d 792, rev den, 356 Or 397 (2014) (internal quotation marks and brackets omitted); see also ORAP 5.45(1). If we conclude that the asserted error is plain, we must decide whether to exercise our discretion to correct the error. Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991). In making that decision, we consider, among other things,

“the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way[.]”

Id. at 382 n 6.

[157]*157In this case, the alleged error — that, in order to impose court-appointed attorney fees under ORS 151.505 and ORS 161.665, there must be evidence in the record that the defendant is or may be able to pay them — is legal error and not reasonably in dispute. See Bacote v. Johnson, 333 Or 28, 32, 35 P3d 1019 (2001) (“To resolve the parties’ dispute over what a court must do in determining a person’s ability to pay costs under ORS 151.505, we must construe the statute.”); State v. Below, 264 Or App 384, 385, 332 P3d 329 (2014) (“Under ORS 151.505 and ORS 161.665, a trial court may order a defendant to pay court-appointed attorney fees and other costs. However, in order for a court to do so, there must be evidence that the defendant ‘is or may be able to pay’ the fees and costs.”); State v. Coverstone, 260 Or App 714, 716, 320 P3d 670 (2014) (the burden is on the state to prove that a defendant is or may be able to pay fees); State v. Pendergrapht, 251 Or App 630, 634, 284 P3d 573 (2012) (“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.”).

In arguing that any error here was not “plain,” the state focuses on the third inquiry — whether, to reach the error, we would have to go outside of the record or choose between competing inferences. Defendant contends that the record contained “no evidence of defendant’s ability to pay” and that “the trial court found that defendant was indigent.” The state counters that the record demonstrates that “defendant was recently employed and was employable,” and argues that “as long as the record suggests that the defendant ‘may be able to pay’ fees at some point in the future * * * the court may impose fees.”

Our recent decisions in State v. Jaimes-Pineda, 271 Or App 75, 81, 350 P3d 465 (2015), and State v. Hunt, 271 Or App 347, 351, 350 P3d 521 (2015), are illustrative. In Jaimes-Pineda, the defendant asserted that the trial court had plainly erred in imposing $1,300 in court-appointed attorney fees on a record that established that the defendant “was unemployed and indigent” and “was unable to pay the fees.” 271 Or App at 81. We disagreed, concluding that the record contained sufficient evidence of the defendant’s [158]*158ability to pay, including that the defendant was “‘a farm equipment mechanic,’” that he usually found work when he “'goes into farms,”’ and that the defendant “'was expecting to be going back to work fairly soon in the very near future.’” Id. at 82.

In Hunt, the defendant argued that the trial court had plainly erred in imposing $510 in court-appointed attorney fees because “the record is silent regarding defendant’s ability to pay that amount.” 271 Or App at 351. In that case, the defendant’s counsel provided the court with information about the “defendant’s age, health and alcohol addiction issues, and current employment status” that was “unrelated to defendant’s ability to pay the attorney fees ordered by the court.” Id. at 352. We held that, “[e]ven with that information, it is apparent from the record and not reasonably in dispute that the state failed to present evidence of defendant’s ability to pay, and, therefore, the trial court erred when it concluded that defendant was able to pay those fees.” Id.

Here, the state does not identify any evidence that it offered to establish defendant’s ability to pay the attorney fee. Nonetheless, the state asserts that the record shows that defendant may be able to pay the court-imposed fees because “defendant was recently employed and was employable.” But the evidence cited by the state does not support that contention. That evidence is limited to a statement during sentencing in which defendant disputed the state’s assertion that he had broken his hand while punching someone and stated that the injury had occurred “at work.” That isolated statement told the court nothing about the nature of his present employment or future prospects, nor did it inform the court about the likelihood of defendant’s ability to pay the fees upon his release after nearly seven years of incarceration. Given those circumstances, we need not choose between competing inferences from the record; rather, the record simply does not contain evidence of defendant’s present or potential ability to pay. In the absence of such evidence, the state failed to meet its burden and the trial court plainly erred in imposing the attorney fee pursuant to ORS 151.505

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Cite This Page — Counsel Stack

Bluebook (online)
354 P.3d 758, 272 Or. App. 155, 2015 Ore. App. LEXIS 811, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-nickerson-orctapp-2015.