State v. Mejia-Espinoza
State v. Mejia-Espinoza
Opinion of the Court
Defendant was convicted of rape in the first degree, ORS 163.375, unlawful sexual penetration in the first degree, ORS 163.411, and sexual abuse in the first degree, ORS 163.427, and sentenced to 200 months in prison. On appeal, he asserts nine assignments of error. We write only to address his ninth assignment of error, in which he contends that the trial court erred when it ordered him to pay $6,000 in court-appointed attorney fees, and we reject defendant’s other contentions without further discussion. Defendant acknowledges that his claim of error is unpreserved, but asks us to review and correct the error as “an error of law apparent on the record.” ORAP 5.45(1). For the reasons that follow, we reverse the attorney fee award and otherwise affirm.
Notwithstanding a defendant’s failure to object at trial, an appellate court “may consider an error of law apparent on the record.” ORAP 5.45(1). We have held that it is “plain error” for a trial court to require a defendant to pay court-appointed attorney fees in the absence of legally sufficient evidence that the defendant has the ability to pay the amount imposed. State v. Coverstone, 260 Or App 714, 716, 320 P3d 670 (2014); see ORS 151.505(3) (a trial court may not impose costs unless the person “is or may be able to pay the costs”). “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 P3d 573 (2012). The state bears the burden of proving that a defendant “is or may be able to pay” attorney fees. State v. Kanuch, 231 Or App 20, 24, 217 P3d 1082 (2009).
Here, defendant contends that the trial court erred in imposing payment of attorney fees because the record contains no information supporting a finding that he was, or would be, able to pay a $6,000 attorney fee. Specifically, defendant notes that the record shows that he was, and will continue to be, impoverished, and that he was sentenced to 200 months in prison. The state argues that the court did not “plainly err,” because there was evidence in the record that defendant had done “[ffield work, picking different kinds of fruits [,]” and that he had been a firefighter.
We further determine that it is appropriate to exercise our discretion pursuant to Ailes v. Portland Meadows, Inc., 312 Or 376, 382, 382 n 6, 823 P2d 956 (1991), to correct that error. In determining whether to exercise our Ailes discretion, we consider, among other things, “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.
Here, we exercise our discretion to correct the asserted error for reasons similar to those in Coverstone. First, the error is grave; as noted, defendant was ordered to pay $6,000, which is a substantial sum. See id. at 717 (asserted error was “grave” in that imposition of $8,000 fee
Portion of judgment requiring defendant to pay attorney fees reversed; otherwise affirmed.
Reference
- Full Case Name
- STATE OF OREGON, Plaintiff-Respondent v. ALBERTO MEJIA-ESPINOZA
- Cited By
- 12 cases
- Status
- Published