State v. Valdez

Under ORS 151.505(3) and ORS 161.665(4), a court may not order a defendant to pay court-appointed attorney fees unless the defendant “is or may be able” to pay them.

Defendant appealed a judgment of conviction for two counts of first-degree rape, ORS 163.375, two counts of first-degree sodomy, ORS 163.405, two counts of first-degree unlawful sexual penetration, ORS 163.411, and two counts of first-degree sexual abuse, ORS 163.427. On appeal, Defendant, in his fifth assignment of error, argued that the trial court lacked the statutory authority to impose court-appointed attorney fees in the absence of any evidence of Defendant’s ability to pay them. The State argued that the record contained sufficient evidence of Defendant’s ability to pay the court-appointed attorney fees. Under ORS 151.505(3) and ORS 161.665(4), a court may not order a defendant to pay court-appointed attorney fees unless the defendant “is or may be able” to pay them. The Court found that in this case there was no evidence, as of the time of sentencing, Defendant possessed assets sufficient to satisfy the award of fees or that he would receive income during his lengthy incarceration that could be applied toward that obligation. Portion of judgment requiring Defendant to pay attorney fees reversed; otherwise affirmed.