State v. Smith , 299 Or. App. 536 ( 2019 )

536
Submitted August 16; portion of judgment requiring defendant to pay court-
appointed attorney fees reversed, otherwise affirmed September 25, 2019;
petition for review denied January 16, 2020 (366 Or 97)
STATE OF OREGON,
Plaintiff-Respondent,
v.
GREGORY LOREN SMITH,
Defendant-Appellant.
Marion County Circuit Court
17CR07380; A167016
449 P3d 1291
David E. Leith, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Keith L. Kutler, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
PER CURIAM
Portion of judgment requiring defendant to pay court-
appointed attorney fees reversed; otherwise affirmed.
Cite as 299 Or App 536 (2019) 537
PER CURIAM
Defendant appeals a judgment of conviction for one
count of attempted first-degree unlawful sexual penetration,
one count of first-degree unlawful sexual penetration, and
four counts of first-degree sexual abuse. On appeal, defen-
dant raises two assignments of error.1 We reject defendant’s
first assignment of error without discussion. In a second
assignment of error, defendant argues that the trial court
erred in imposing $7,647 in court-appointed attorney fees,
and the state concedes that the trial court erred. We agree,
accept the state’s concession, and reverse the court’s imposi-
tion of court-appointed attorney fees.
At sentencing, defendant asked the court to find
that he did not have a present or future ability to pay court-
appointed attorney fees and also pointed out that he would
be serving a lengthy prison sentence of at least 25 years.
The trial court then asked defendant a series of questions
that elicited that defendant was 31 years old, would try to
work upon his release from prison—perhaps as a drug and
alcohol counselor which he had been working toward before
his convictions, was currently healthy and intended to
remain so, and would try to better himself while in prison.
The trial court then determined that it would impose court-
appointed attorney fees, which the court imposed in the
amount of $10,000 because “I believe that within a reason-
able time that can be paid with—on a plan. Beyond that
I can’t find ability to pay.” The judgment imposed reduced
court-appointed attorney fees of $7,647.
On appeal, defendant argues that the trial court
erred because the information that the trial court elicited—
that defendant intended to live long enough to be released
from prison, to still be in a healthy state, and to work upon
his release—is not sufficient evidence of defendant’s current
or future financial circumstances that can support imposi-
tion of court-appointed attorney fees. See State v. Mendoza,
1
Additionally, defendant filed a supplemental brief that included a supple-
mental assignment of error that assigned error to the trial court’s instruction to
the jury that it could return a nonunanimous verdict. Defendant contends that
the Sixth and Fourteenth Amendments to the United States Constitution require
unanimous jury verdicts. We reject that argument on the merits without further
discussion.
538 State v. Smith
286 Or App 548, 550, 552, 401 P3d 288 (2017) (“[T]he record
must contain evidence that permits an objective, nonspecu-
lative assessment of the defendant’s present or future capac-
ity to pay court-appointed attorney fees.”; “A defendant’s
acknowledgement that he intends to seek work after a six-
year prison sentence is not sufficient to permit an inference
of such an ability to pay, nor is the absence of a disability the
metric of an ability to do so.”). The state concedes that the
trial court erred because “the record contains no evidence of
defendant’s actual ability to pay” and that we should reverse
the attorney fee award.
We agree with and accept the state’s concession. We
also conclude that the appropriate disposition is to reverse
the portion of the judgment imposing the court-appointed
attorney fees and to otherwise affirm. See, e.g., id. at 553.
Portion of judgment requiring defendant to pay
court-appointed attorney fees reversed; otherwise affirmed.