State v. Berg

Under ORS 151.505(3), and 161.665(4), it is plain error for a trial court to require a defendant to pay attorney fees in the absence of evidence he is able to do so. Under plain error analysis, competing inferences must be “plausible,” not speculative.

Defendant appealed the trial court’s order that Defendant pay $510 in attorney fees, arguing that there was no evidence Defendant had the ability to repay the fees. ORS 151.505(3) (“The court may not require a person to pay costs under this section unless the person is or may be able to pay the costs.”); ORS 161.665(4) (“The court may not sentence a defendant to pay costs under this section unless the defendant is or may be able to pay them.”). The State argued that Defendant’s failure to object to the imposition of attorney fees was strategic, so that the trial court would not rethink waiving the imposition of attorney fees on a misdemeanor charge the trial court also convicted Defendant of. The Court held that the State’s argument was speculative at best, and under the standard announced in State v. Pergande, 270 Or. App. 280, 284-85, 348 P.3d 245 (2015), and State v. Lovern, 234 Or. App. 502, 511-12, 228 P.3d 688 (2010), for plain error analysis all competing inferences must be “plausible,” not speculative. Portion of judgment requiring defendant to pay attorney fees reversed; otherwise affirmed.