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Oregon: State Must Prove Defendant’s Ability to Pay Attorney Fees

Oregon: State Must Prove Defendant’s Ability to Pay Attorney Fees

by Mark Wilson

On July 23, 2014, the Oregon Court of Appeals vacated $36,000 in court-appointed attorney and indigent contribution fees, as there was no evidence the defendant had the ability to pay them.

Oregon law authorizes trial courts to order criminal defendants to pay court-appointed attorney fees and other costs. However, “there must be evidence that the defendant ‘is or may be able to pay’ the fees and costs.” The state bears the burden of proving ability to pay, and fees may not be imposed “on pure speculation that a defendant has funds to pay the fees or may acquire them in the future.”

Mitchell Alan Below, 52, was charged with murder and applied for a court-appointed attorney. The trial court waived the $20 application fee and appointed counsel.

Below asserted an extreme emotional disturbance defense based on expert testimony concerning his history of alcohol abuse, depression and other problems. The court rejected the defense, found Below guilty of murder and sentenced him to life in prison with the possibility of parole after 25 years.

The trial court also ordered Below to pay $673 in assessments, $4,000.73 in restitution, a $9,327 fine, $18,000 in court-appointed attorney fees and $18,000 for an unspecified indigent contribution. The court did not determine if Below had the ability to pay the various costs or might be able to pay them in the future.

Below did not object at the time, but argued on appeal that the attorney fee and indigent contribution fee should be reviewed and reversed as “plain error.”

The only evidence related to Below’s ability to pay was that he was 52 years old, sentenced to life in prison with no possibility of release for 25 years, and had a history of unemployment and underemployment due to depression and alcohol abuse.

The Court of Appeals first rejected the state’s argument “that the trial court did not err because ‘nothing in this record tends to show that the defendant was unemployable.’” That argument improperly relieved the state of its burden to prove Below’s ability to pay and shifted the burden to the defendant.

The appellate court then concluded that the trial court had committed plain error because “the record does not contain sufficient evidence to support a finding” that Below “was or might be able to pay the $18,000 court-appointed attorney fees and the $18,000 indigent contribution.”

It was “speculative whether [Below] will ever be released,” the Court noted, “and it is even more speculative that, if he is released, he might be able to obtain employment that would enable him to pay the $18,000 court-appointed attorney fees and the $18,000 indigent contribution, particularly in light of his history, age, and other court-imposed financial obligations.” As such, “the trial court committed plain error by imposing the court-appointed attorney fees and indigent contribution.”

The Court of Appeals then exercised its “discretion to correct the erroneous imposition” of fees, finding that “the errors are grave” and “there was no evidence that [Below] was able to pay the court-appointed attorney fees or might be able to pay them in the future.” See: State v. Below, 264 Ore. App. 384, 332 P.3d 329 (Or. Ct. App. 2014).


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Related legal case

State v. Below