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Oregon Attorney Fee Repayment Requires Showing of Ability to Pay

Oregon Attorney Fee Repayment Requires Showing of Ability to Pay

by Mark Wilson

On October 9, 2013, the Oregon Court of Appeals held that a trial court lacked the authority to require a criminal defendant to pay $37,400 in court-appointed attorney fees.

Oregon criminal defendants may be ordered to pay their court-appointed attorney’s expenses. However, a court “lacks authority” to impose such fees unless it determines that the defendant “is or may be able to pay them.” That determination must be supported by the record and is not satisfied “by a speculative possibility that a defendant may receive a gift, inheritance, or other windfall.”

Larry Lynn Wallace pleaded no contest to murder with a firearm in exchange for a sentence of life imprisonment with a 25-year minimum. Additionally, the prosecutor asked the court to sentence Wallace to pay $37,400 in court-appointed attorney fees plus $26,018.09 in restitution, a $607 unitary assessment and a $35 offense surcharge. The prosecutor made no showing that Wallace had the ability to pay any of the requested financial assessments, other than speculative conjectures. Noting that Wallace had been receiving Social Security disability payments prior to his incarceration, his attorney argued that he did not, and would not, have the ability to pay.

“If defendant were released after 25 years, he would be 76 years old. His employment opportunities would be limited by his physical disability and his age. According to defense counsel, they would also be limited by defendant’s lack of education and mental-health problems. Therefore, defense counsel argued, ‘[defendant] does not have the ability right now, and he will not have the ability in the conceivable future, realistically, for the rest of his life[,] to pay anything more than restitution.’”

Nevertheless, the trial court ordered Wallace to pay the financial assessments. With respect to the court-appointed attorney fees, the court found “that at least at this point you don’t have an ability to pay that. Although it is uncertain whether you would have the ability to pay that in the future. And I say that because I don’t know what money you may come into as a result of your family relationships that could be put toward making payments.” As such, the court ordered Wallace to pay the attorney fees but suspended the payment.

The Oregon Court of Appeals reversed, holding that “the trial court did not find (and, given the record before it, could not have found) that defendant was or might be able to pay the $37,400 in attorney fees – in addition to the $26,018.09 in restitution, the $607 unitary assessment, and the $35 offense surcharge – given the length of his incarceration, his disability, and the other limitations on his ability to earn any income in prison or upon release.”

The appellate court found that the suspension of payment of the fees by the trial court was irrelevant, because “under ORS 161.655(4), the trial court did not have the authority to impose the fees in the first instance.” See: Oregon v. Wallace, 258 Ore. App 800, 311 P.3d 975 (Or. Ct. App. 2013).

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Related legal case

Oregon v. Wallace