State v. Runnels
State v. Runnels
Opinion of the Court
Defendant was convicted after a jury trial of unlawful manufacture of heroin, ORS 475.846; unlawful delivery of heroin, ORS 475.850; unlawful possession of heroin, ORS 475.854; unlawful delivery of methamphetamine, ORS 475.890; unlawful possession of methamphetamine, ORS 475.894; and felon in possession of a firearm, ORS 166.270. The court also entered a judgment of criminal forfeiture, ORS 131.582. Defendant was sentenced to 52 months’ imprisonment on each of the drug-related convictions (Counts 1 through 5), and 12 months’ imprisonment on the firearms conviction (Count 6), which was ordered to be served consecutively to the sentence imposed on Count 5. The court also ordered defendant to pay $440 in court-appointed attorney fees, in addition to other fines and fees. He appeals the resulting judgment, raising four assignments of error. We reject defendant’s first, third, and fourth assignments of error without discussion
Defendant acknowledges that he did not preserve his assignment of error on attorney fees, but he contends that we should exercise our discretion to correct the error as plain error—as we have in other cases—because there is no evidence in the record that he is or will be able to pay the fees. See ORAP 5.45(1) (appellate court has discretionary authority to review an unpreserved error of law that is apparent on the record). The state responds that, because “the trial court may well have relied on the information collected to determine defendant’s eligibility for court-appointed counsel in ordering him to pay $440 in court-appointed attorney fees,”
We reject the state’s argument. ORS 151.505 and ORS 161.665 authorize the court to order a defendant to repay the costs of court-appointed counsel; however, “[t]o invoke that authority, the trial court must make a predicate determination that a criminal defendant ‘is or may be able to pay’ the fees.” State v. Mickow, 277 Or App 497, 498, 371 P3d 1275 (2016) (quoting ORS 151.505(3); ORS 161.665(4)). “Absent that determination, those statutes, by their terms, prohibit a court from requiring a defendant to pay fees.” Id. Consequently,
“for us to uphold an award of court-appointed attorney fees, the record must *** permit the inference that the trial court did, in fact, comply with the applicable statutory requirements when awarding fees. In other words, when evaluating an award of court-appointed attorney fees, we do not assume that the trial court complied with applicable statutory procedures unless the record provides some affirmative support for that assumption. Where the record contains no affirmative indication that the trial court complied with the statutory requirements for imposing fees, we will conclude that the court did not, in fact, do so.”
Here, there is no “affirmative indication” in the record that the court made the predicate determination required by statute, and the state’s suggestion to the contrary is nothing more than speculation. Moreover, even if we assume that the court considered the information that defendant provided in support of his eligibility for court-appointed counsel, as defendant points out in his memorandum of
We turn to the next inquiry in the plain-error analysis—whether it is appropriate for us to exercise our discretion to correct the error in this case. Ailes v. Portland Meadows, Inc., 312 Or 376, 382, 823 P2d 956 (1991) (even if error is plain, “the appellate court must exercise its discretion to consider or not to consider the error, and if the court chooses to consider the error, the court must articulate its reasons for doing so”). The state argues only that the asserted error is not plain error; it does not offer any
Portion of judgment requiring defendant to pay attorney fees reversed; otherwise affirmed.
In his first assignment, defendant asserts that the trial court erred in denying his motion to suppress evidence discovered during what he contends was an unlawful extension of a traffic stop. In his third and fourth assignments respectively, defendant contends that the trial court plainly erred by instructing the jury that it could find defendant guilty by nonunanimous verdicts and by accepting the jury’s nonunanimous guilty verdict on one of the counts.
See ORS 151.485 to 151.497 (procedures governing determination of financial eligibility for court-appointed counsel).
ORS 151.495 provides, in part:
“(1) All information supplied by a person seeking appointed counsel and all information collected by the state courts for purposes of determining financial eligibility for appointed counsel under ORS 151.485 to 151.497 is confidential and shall not be used for any purpose other than determining financial eligibility.
“(2) Notwithstanding subsection (1) of this section, information supplied by a person seeking appointed counsel and information collected by the state courts for purposes of determining financial eligibility may be:
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“(c) Used by the court in a sentencing proceeding resulting from the defendant’s conviction on the matter for which the information was provided or collected [.]
Case-law data current through December 31, 2025. Source: CourtListener bulk data.