State v. Nickerson

A mere discussion of Defendant's ability to have a job is insufficient to conclude Defendant's ability to pay court-appointed attorney fees.

Defendant was convicted for one count of second-degree assault and one count of tampering with physical evidence and sentenced to 70 months in prison and $1,500 in attorney fees. Defendant appealed, arguing that the trial court plainly erred by assessing attorney’s fees without discussion of Defendant's ability to pay those fees. The State argued that the error was not “plain,” and that the trial court record showed that Defendant “was recently employed and was employable,” suggesting that Defendant's ability to pay the fees. On appeal, the Court found that the State did not offer sufficient evidence to establish Defendant’s ability to pay attorney fees. The State’s argued that Defendant had stated that he had broken his hand at work; but this statement was only made to contend the state’s assertion that Defendant had broken his hand during the incident which led to Defendant’s arrest. The Court held that the state did not prove that Defendant was able to afford attorney fees, and the trial court plainly erred in assigning those fees to Defendant. The Court determined that, in conjunction with the sentence of 70 months in prison, a fine of $1,500 in attorney fees is significantly grave to warrant correction. Judgment for Defendant to pay attorney fees reversed and remanded; otherwise affirmed.