State v. Opitz

An appellate court may reverse judgment requiring defendant to pay attorney fees if the trial court erred in its assessment of defendant's ability to pay those fees; an appellate court does not have authority to exercise discretion when the trial court refuses to order defendant eligible for sentence modification.

Defendant appealed conviction of first-degree burglary, second-degree attempted assault, fourth-degree assault, and first-degree kidnapping. Defendant appealed; on appeal, the kidnapping conviction was reversed and remanded for resentencing. At resentencing, the trial court found that, based on five aggravating factors in the crimes, he should be sentenced to 124 months in prison, 18 of which Defendant had already served, and denied Defendant eligibility for sentence modification. Defendant was ordered to pay $1,600 in attorney fees. Defendant appealed the resentencing decision, assigning plain error to the trial court’s order for Defendant to pay $1,600 which court did not determine he was able to pay. The State conceded the error; the Court exercised its discretion to reverse the error, determining the error was grave enough to warrant reversal on that issue. Defendant’s second assignment of error claimed that the court plainly erred by denying him “eligibility for sentence modification programs under O.R.S. 137.750,” which provides that when a court sentences a defendant to incarceration, the court should order that the defendant be considered for sentence modification. The Court determined that, even if the trial court erred, the Court did not have the authority to exercise discretion to correct it. Attorney fees judgment Reversed; otherwise Affirmed.