State v. Coverstone

When a trial court imposes court-appointed attorney fees upon a defendant despite no indication on the record of the defendant's ability to pay those fees, it is a "plain error" pursuant to ORAP 5.45(1).

Coverstone appealed judgments for multiple counts of sodomy and sexual abuse because the trial court ordered him to pay $8,000 in court-appointed attorney fees, when there was no evidence in the record of his ability to do so. Coverstone asked the court to view the error as an error of law apparent on the record, otherwise known as "plain error." The State argued the error is not a "plain error" and asked the court to avoid any alterations to the judgments. Pursuant to ORAP 5.45(1): (1) the error must be an error of law; (2) it must be apparent in that the legal point is obvious, not reasonably in dispute; and (3) irrefutable facts must appear on the record, without any need to go outside the record, nor have any competing inferences to establish validity. Coverstone argued that the trial court "had no authority to impose payment of attorney fees in the absence of evidence of defendant's ability to pay" and that the State bears the burden of proving this element was satisfied. The State argued that the legal error here does not appear on the record, and accordingly doesn't satisfy the "plain" standard. Further, the State argued that the trial court is not required to engage in fact-finding as to a defendant's ability to pay on the record, and is capable of using "off-the-record" inferences in determining whether or not a defendant is capable of paying fees. The Court noted that the State's approach shifts the burden of proof to the defendant, contrary to Oregon law. The Court held that since the record is silent regarding Coverstone's ability to pay attorney fees in this case, it is a "plain error" for the trial court to impose attorney fees on Coverstone. In addition, the Court held the gravity of the error, namely the substantial sum in fees, the lengthy prison term, and the context of the record, make the Court's discretion necessary. Reversed in Part, otherwise Affirmed.