State v Osborn

Under ORS 151.505(3) and ORS 161.665(4), it is plain error to require a defendant to pay attorney fees absent any evidence he is able to do so. Under ORAP 5.45(1), a reviewing court may examine the gravity of the error, the prison term length, and the lack of financial resources of the defendant in choosing to exercise its discretion to correct the plain error of a trial court when a defendant did not adequately preserve his objection at trial.

Defendant was convicted for delivery and possession of methamphetamine, and sentenced to 25 months’ imprisonment. On appeal, defendant challenged the $707 court-appointed attorney fees imposed and asked the court to use its discretion to correct it, despite the error not preserved, since the record lacks evidence showing that defendant is or may be able to pay the fees. The state conceded that the fees were plainly erroneous because fees cannot be rewarded based on pure speculation. The court agreed because of the gravity of the error, the prison term length, and the lack of financial resources. The judgment requiring defendant to pay was reversed; otherwise affirmed.