State v. Laune

                                       541

                Submitted July 30, 2018, affirmed April 15, 2020


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                      DARYL LEE LAUNE, JR.,
                         Defendant-Appellant.
                     Lincoln County Circuit Court
                         16CR55816; A163483
                                   

    Defendant appeals a judgment of conviction for violating a court’s stalking
protective order. Defendant assigns error to the trial court’s imposition of $330 in
court-appointed attorney fees as part his sentence. Specifically, defendant argues
that a court may only order a defendant to pay attorney fees when there is evidence in the record that the defendant is or may be able to pay them and that,
here, the court erroneously based its finding of an ability to pay on a security
deposit that defendant’s sister had paid. According to defendant, an amendment
to ORS 135.265(2), which governs the return of security deposits, eliminated the
previously recognized presumption that a third-party security deposit belongs to
the defendant for purposes of an ability-to-pay determination. Therefore, defendant contends that the record was insufficient to support the trial court’s finding
that he had an ability to pay. Held: Defendant failed to preserve his arguments
that would have put the meaning of ORS 135.265(2) or the adequacy of the record
at issue; therefore, the Court of Appeals declined to address defendant’s arguments on appeal.
    Affirmed.



    Sheryl Bachart, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erin J. Snyder Severe, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rebecca M. Auten, Assistant Attorney
General, filed the brief for respondent.
  Before DeHoog, Presiding Judge, and DeVore, Judge, and
Aoyagi, Judge.
    DeHOOG, P. J.
    Affirmed.
542                                             State v. Laune

        DeHOOG, P. J.
         Defendant appeals from a judgment of conviction for
violating a stalking protective order. As part of defendant’s
sentence, the trial court ordered that defendant pay $330 in
court-appointed attorney fees. On appeal, defendant argues
that the court erred in imposing that obligation, because a
court may order a defendant to pay attorney fees only when
there is evidence in the record that the defendant is or may
be able to pay them, and here the court erroneously relied
on a security deposit paid by defendant’s sister to find that
he had that ability. According to defendant, under ORS
135.265(2), which governs the return of security deposits,
a deposit made by a third party on a defendant’s behalf is
not considered the defendant’s property for purposes of an
ability-to-pay determination and therefore cannot serve as
the basis for such a finding in regard to attorney fees. As
we explain below, however, that argument is not preserved.
Accordingly, we decline to address it on appeal, and we
affirm.
         The relevant facts are procedural and undisputed.
Defendant was charged with violating a court’s stalking
protective order, and the trial court approved defendant’s
request for court-appointed counsel. Shortly thereafter,
defendant’s sister paid a $1,500 security deposit and signed
a security agreement to secure defendant’s release from jail.
The agreement stated, in part:
   “SECURITY REFUND: At the conclusion of the case, the
   judge will decide if security can be refunded. Security can
   be applied to the defendant’s financial obligations on any
   case, or to any child support the defendant owes. The Court
   will deduct from the refund 15% of the amount posted as
   administrative costs.

   “THE PERSON POSTING SECURITY ACKNOWLEDGES
   NOTICE THAT THE SECURITY AMOUNT MAY BE
   USED TO PAY THE DEFENDANT’S FINANCIAL OBLIGATIONS, INCLUDING CHILD SUPPORT, AND MAY BE
   FORFEITED IF THE DEFENDANT FAILS TO APPEAR
   FOR ANY SCHEDULED HEARING.”

(Uppercase and underscore in original.)
Cite as 

 (2020)                                              543

         A jury found defendant guilty of the charged offense
of violating a court’s stalking protective order. At defendant’s ensuing sentencing hearing, the trial court ordered
defendant to pay, among other fines and fees, a $330 court-appointed attorney fee, to be taken from the $1,500 security
deposit that defendant’s sister had posted on his behalf.
        Defendant correctly points out that a trial court
errs when it imposes a court-appointed attorney fee absent a
record that the defendant “is or may be able to pay” the fee,
and that the burden is on the state to prove that ability to
pay. ORS 151.505(3);1 ORS 161.665(4); State v. Crider, 

, 

 (2018). Defendant acknowledges that
ORS 135.265(2)2 authorizes a trial court to retain portions
of a security deposit at the conclusion of a criminal case.
Defendant contends, however, that, when the legislature
amended ORS 135.265(2) in 1979 to make security deposits
refundable to the person making the deposit, rather than to
the defendant, the legislature expressed its intention that
third-party security deposits not be considered “available”
for purposes of determining a defendant’s ability to pay
under ORS 151.505(3).
        More specifically, defendant notes that, before ORS
135.265(2) was amended in 1979, a defendant was presumptively entitled to recover—less a processing fee—sums
posted as security, as follows:
      “When conditions of the release agreement have been
   performed and the defendant has been discharged from all
   obligations in the cause, the clerk of the court shall return to
   the accused, unless the court orders otherwise, 90 percent

   1
     ORS 151.505(3) states:
       “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. In determining the amount
   and method of payment of costs, the court shall take account of the financial
   resources of the person and the nature of the burden that payment of costs
   will impose.”
   2
     The text of ORS 135.265(2) reads, in part:
       “When conditions of the release agreement have been performed and the
   defendant has been discharged from all obligations in the cause, the clerk of
   the court shall return to the person shown by the receipt to have made the
   deposit, unless the court orders otherwise, 85 percent of the sum which has
   been deposited and shall retain as security release costs 15 percent, but not
   less than $5 nor more than $750, of the amount deposited.”
544                                                          State v. Laune

    of the sum which has been deposited and shall retain as
    security release costs 10 percent of the amount deposited.”
ORS 135.265(2) (1977), amended by Or Laws 1979, ch 878,
§ 1 (emphasis added). Defendant further observes that, in
1979, the legislature amended ORS 135.265(2) and specifically changed the person entitled to recover a security
deposit from “the accused” to “the person shown by the
receipt to have made the deposit.” ORS 135.265(2); Or Laws
1979, ch 878, § 1. Defendant contends that, because of that
amendment, ORS 135.265(2) should be interpreted as prohibiting trial courts from considering third-party security
deposits when determining whether a defendant “is or may
be able to pay.” See ORS 151.503(3).
         In making that argument, defendant acknowledges that our case law says otherwise. That is, both before
and after the 1979 amendment to ORS 135.265(2), Oregon
courts have recognized a legal presumption that cash bail
posted on behalf of a defendant belongs to the defendant.
Rosentreter v. Clackamas County, 

, 

(1928) (“The money deposited by a third person in lieu of
bail for one charged with a criminal offense is presumed to
belong to the defendant.”); State v. Baker, 

, 

, rev den, 

 (2000) (“[C]ase law
construing ORS 135.265(2) makes clear that the discretion
of the court to withhold the return of the security deposit
applies whether or not the source of the deposit was a third
party.”); State v. Davis, 

, 

(1992) (“We are not aware of any requirement that money
deposited as security by a third party be treated any differently than if it were deposited by the defendant.”); State
v. Grant, 

, 

 (1980) (“We
hold that because it was lawful for the court to regard the
[third-party] deposit as defendant’s and available to satisfy
defendant’s obligations under the judgment, it was within
the court’s discretion to withhold its return for payment of
defendant’s obligations under the judgment.”). Defendant
asks us to reconsider that legal presumption.3
    3
      In our recent decision in State v. Thomas, 

, 

,
rev den, 

 (2018), we held that the court had not plainly erred in imposing attorney fees when it relied on funds that the defendant had deposited as
security in determining that he had the ability to pay those fees. Notably, our
Cite as 

 (2020)                                                545

        We begin—and, as it turns out, conclude—by considering whether defendant preserved his argument for
appeal.4 Defendant contends that he preserved that argument during his sentencing hearing, based on the following
colloquy:
        “[THE COURT:] Financial obligation in your case is a
    $1,000 fine. Ordering that you reimburse the state for the
    cost of court-appointed counsel. I think there’s a judgment,
    let me look, that was previously entered. So it’s $330 in
    attorney fees and there’s a $100 bench probation assessment. That will all be taken from the security that was
    posted in this case, less costs.
        “…
        “[DEFENSE COUNSEL:] I would object to the imposition of the $330 for court-appointed attorney costs, in the
    absence of a finding that [defendant] has the ability to pay.
       “THE COURT: I don’t think I have to state it when
    they’ve posted $1,500 in security. But I will find he has the
    ability to pay it because the funds are already available.
       “[DEFENSE COUNSEL:]                 Just wasn’t sure if that was
    his money that was posted.
        “THE DEFENDANT: No, it’s not. My sister paid—
       “THE COURT: It’s money that’s available and that
    people post on his behalf that I can use for attorney fees.

decision in Thomas relied, in part, on State v. Wise, 

, 

(1979), in which we held that, in denying a request to return a security deposit to
the third party who had posted it, the trial court had implicitly found that those
funds were available to the defendant for purposes of paying costs. Thomas, 

. However, citing an intervening case, State v. Nichols, 

, 

 (1984), in which the defendant’s son had posted his
security, we also acknowledged that a “defendant is not necessarily able to pay
attorney fees simply because he, or a friend or relative on his behalf, has posted
a security deposit.” Thomas, 

 n 1 (emphasis added; internal
quotation marks omitted).
    4
      We acknowledge that, under Stull v. Hoke, 

, 

(1997), “[i]n construing a statute, this court is responsible for identifying the
correct interpretation, whether or not asserted by the parties.” However, that
responsibility arises “only when the parties have put the issue of statutory interpretation before us by disagreeing as to what a statute means; in such situations,
we are not limited to choosing the better of two erroneous interpretations.” State
v. Shepherd, 

, 

 (2010). In other words, the parties
are still responsible for preserving arguments in a way that places the correct
statutory interpretation at issue.
546                                                            State v. Laune

    And if that resource is available to him, then they are
    resources to pay the attorney fees.
        “THE DEFENDANT: I can, uh—
        “THE COURT: He should pay his sister back.
        “THE DEFENDANT: I could pay her back.
        “THE COURT: Yeah. Then he has the ability to pay.
        “[DEFENSE COUNSEL:]                 Thank you, Judge.
        “…
       “THE DEFENDANT: She’ll understand and I can pay
    her back.”
(Emphasis added.)
         For its part, the state does not dispute defendant’s
contention that he adequately preserved his claim of error.
Rather, the state responds on the merits and argues that it
was not error for the trial court to rely on defendant’s security deposit in determining that he had the ability to pay
attorney fees. Specifically, the state points out that the plain
language of ORS 135.265(2) contemplates that trial courts
will withhold security deposits for appropriate purposes—
which, the state contends, includes the payment of a defendant’s financial obligations—as follows:
    “[T]he clerk of the court shall return to the person shown
    by the receipt to have made the deposit, unless the court
    orders otherwise, 85 percent of the sum which has been
    deposited and shall retain as security release costs
    15 percent, but not less than $5 nor more than $750, of
    the amount deposited.”
ORS 135.265(2) (emphasis added). And, in the event that we
do not read the plain language of the statute as the state
does, the state also provides legislative history to support
its proposition that courts have the authority to withhold
security deposits as the trial court did in this case.5

    5
      In an alternative argument, the state contends that the record contained
additional evidence to support a finding that defendant had the ability to pay the
attorney fees, even if the court had not considered the security deposit. In light of
our disposition, we need not consider that issue.
Cite as 

 (2020)                            547

          This case however, does not provide us an opportunity to consider the parties’ statutory arguments, because
defendant did not preserve his statutory argument for
appeal. Though the state concedes defendant’s preservation
argument, that concession is not binding on this court. State
v. Wyatt, 

, 

 (2000) (“[N]either the
state’s failure to raise preservation as an issue in the Court
of Appeals, nor the state’s erroneous concession that the
sanction issue had been preserved at trial, conferred authority on that court to consider defendant’s unpreserved claim
of error.”). We are obligated to make our own preservation
inquiry in order to conclude whether “the policies underlying the [preservation] rule have been sufficiently served.”
State v. Parkins, 

, 

 (2009).

         The primary purposes of the preservation rule are
to allow the trial court to consider a contention and correct any error, to allow the opposing party an opportunity
to respond to a contention, and to foster a full development
of the record. Peeples v. Lampert, 

, 

 (2008). In our view, those underlying policies were
not served by the colloquy between defendant and the court
excerpted above, nor by anything else in the record.

         Defendant’s argument on appeal is materially different from the argument he made to the trial court. At sentencing, defendant objected to the imposition of attorney’s
fees “in the absence of a finding that [defendant] has the
ability to pay.” In other words, defendant properly alerted
the trial court to the need for a finding as to defendant’s
ability to pay, which prompted the court to make the necessary finding. On appeal, however, defendant argues that,
under ORS 135.265(2), third-party security deposits cannot
be considered a resource that is “available” to a defendant
and, therefore, the record contains no evidentiary basis to
support the trial court’s finding that defendant “is or may
be able to pay” the fees. That is, his argument on appeal
is no longer that the court was required to make a finding
but, rather, in light of his interpretation of ORS 135.265(2),
that the court relied on an incorrect source of funds in making that finding. Defendant neither raised the application
of ORS 135.265(2) with the trial court, nor argued that the
548                                            State v. Laune

record lacked evidentiary support for the court’s finding
that he had the ability to pay. Stated differently, defendant’s
objection to the imposition of attorney fees “in the absence of
a finding that [defendant] has the ability to pay” did not give
the state or the trial court sufficient notice of his statutory
argument to give either a fair opportunity to respond. See
State v. Zaldana-Mendoza, 

, 

 (2019) (considered “in the context of defendant’s written
motion and the overall argument at [the] hearing, defendant
adequately preserved his argument” because he “gave the
state and the trial court enough information to be able to
understand the contention and to fairly respond to it” (internal quotation marks omitted)).
         Defendant objected to the imposition of attorney
fees without a finding of ability to pay, and the trial court
made the requested finding. Nothing about defendant’s
subsequent statement, that he “just wasn’t sure if that was
[defendant’s] money that was posted,” would have alerted the
court (or the state) that defendant sought to put the meaning of the statute or the adequacy of the record at issue. As
a result, he has not adequately preserved the argument he
makes on appeal. See State v. Shepherd, 

, 

 (2010) (concluding that “[d]efendant loses,
not because a correct interpretation of ORS 137.101(1) compels that outcome, but because she has not adequately preserved the argument that would have put the meaning of
the statute at issue”). Accordingly, we affirm.
        Affirmed.