State v. Geddeda

                                      440

Submitted January 29; portion of judgment requiring defendant to pay attorney
              fees reversed, otherwise affirmed July 21, 2021


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                 KALIFA RAMADAM GEDDEDA,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      19CR17230; A172261
                                  

     In this criminal appeal, defendant seeks reversal of the trial court’s imposition of attorney fees on the ground that there was insufficient evidence to find
that he “is or may be able to pay” them. Held: Neither defendant’s security-release
agreement nor defendant’s vague prospect of employment was sufficient to support the state’s burden to establish that defendant had the ability to pay attorney
fees.
    Portion of judgment requiring defendant to pay attorney fees reversed; otherwise affirmed.



    Theodore E. Sims, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Lauren P. Robertson, Assistant
Attorney General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
    ARMSTRONG, P. J.
   Portion of judgment requiring defendant to pay attorney
fees reversed; otherwise affirmed.
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 (2021)                              441

        ARMSTRONG, P. J.
          Defendant was convicted of fourth-degree assault
constituting domestic violence, ORS 163.160, and harassment, ORS 166.065—both misdemeanors—for which the
trial court imposed 18 months’ probation, $200 in fines, and
$400 in attorney fees. In this criminal appeal, defendant
seeks reversal of the trial court’s imposition of attorney fees
on the ground that there was insufficient evidence to find
that he “is or may be able to pay” them. See 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) (providing, in part, that “[t]he court
may not sentence a defendant to pay costs under this section
unless the defendant is or may be able to pay them”).
       At sentencing, which occurred just before 5:00 p.m.
and immediately after defendant’s trial, the discussion of
defendant’s ability to pay attorney fees went as follows:
      “THE COURT: You’ve been employed, haven’t you?
       “DEFENDANT: I’m kind of doing care giving hopefully soon. If he lets me know after this conviction.
     “THE COURT: And when you’re doing that, what—
   what kind of money were you making?
      “DEFENDANT: Right now, just was a little bit out of
   work, but hopefully, I’ll make some money. I’ll work on it
   right away.
       “[DEFENDANT’S COUNSEL]: So Judge, that’s a job
   he’s applied for. It’s not one he’s been given.
      “DEFENDANT: Yeah.
      “THE COURT: [Prosecutor], did we have restitution
   requested on this case?
      “[PROSECUTOR]:      Zero on both.
      “THE COURT: All right. I’m going to impose $400 in
   attorney[ ] fees on this.”
         On appeal, defendant contends that he preserved
the argument that he now raises because his trial counsel
clarified that the employment he referred to was only a job
for which he had applied, which was sufficient to alert the
442                                         State v. Geddeda

trial court that defendant was objecting to the imposition of
attorney fees. Alternatively, defendant asks that we review
the error as plain error. ORAP 5.45(1). The state responds
that defendant’s clarification about his employment status
was not an objection to the possibility that the court would
find that defendant had the ability to pay attorney fees. We
therefore turn to whether defendant preserved an objection
to the imposition of fees.
         In general, if an issue has not been presented to
the trial court, we will not consider it on appeal. Peeples v.
Lampert, 

, 

 (2008); ORAP 5.45(1).
The preservation rule’s purposes are pragmatic. State v.
Walker, 

, 

 (2011). For one thing,
the rule “gives a trial court the chance to consider and rule
on a contention, thereby possibly avoiding an error altogether or correcting one already made, which in turn may
obviate the need for an appeal.” Peeples, 

. The
preservation rule also “ensures fairness to opposing parties, by requiring that the positions of the parties are presented clearly to the initial tribunal so that parties are not
taken by surprise, misled, or denied opportunities to meet
an argument.” Walker, 

 (internal quotations
omitted). Finally, the preservation rule “fosters full development of the record, which aids the trial court in making
a decision and the appellate court in reviewing it.” Peeples,

. It bears emphasizing that, “[p]articularly
in criminal cases, in which there is a premium on considerations of cost and speed, the realities of trial practice may
be such that fairly abbreviated shorthand references suffice
to put all on notice about the nature of a party’s arguments.”
Walker, 

.
         Here, none of the pragmatic purposes of the preservation rule went unmet by defendant failing to make a more
explicit objection to imposing attorney fees or a more explicit
argument that he did not have the ability to pay them. First,
this is a circumstance in which we can readily tell that the
trial court was assessing defendant’s ability to pay attorney fees when it asked defendant about his employment history and employment prospects before inquiring about other
financial obligations that the state sought to impose. The
court then imposed fees. Why else engage in that colloquy
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except to comply with the statutory responsibility to make
a finding, either express or implied, that defendant is or
may be able to pay attorney fees? See State v. Mickow, 

, 

 (2016) (explaining that the
“record [must] affirmatively support the inference that the
trial court made the statutorily required finding that a
defendant ‘is or may be able to pay’ fees”). We can think of
none, and, this is not an instance where the trial court will
be taken by surprise by the fact that we reached the merits
of the issue. Cf. State v. Sanelle, 

, 

 (2017), rev den, 

 (2018) (concluding that
an argument was preserved because, among other reasons,
the context of a Miranda-violation hearing and the court’s
ruling on an issue made it clear that it was understood that
defendant’s invocation of the right to counsel was at issue).
         Further, in the midst of the trial court’s inquiry,
defendant’s attorney drew attention to the fact that the
caretaking position to which defendant referred had only
been applied for and not been offered. In doing so, counsel
emphasized that defendant’s employment prospects were
uncertain. That uncertainty dovetails with the argument
defendant now makes on appeal: Because defendant was
unemployed at the time of sentencing with no definite job
prospects, any determination that he had the ability to pay
the attorney fees would be speculative. We are satisfied that
counsel’s point was shorthand for asserting that defendant
did not have the ability to pay fees. And, it is understandable that defendant would use shorthand in that way given
the context of the court’s inquiry: The sentencing portion of
defendant’s trial was held very late in the day after defendant’s trial, and the court and the parties quickly went
through sentencing on defendant’s two misdemeanor convictions. Cf. Sanelle, 

 (noting that the record
reflected “that the parties were short on time and were
deliberately cutting short their arguments in the interest of
time, with the apparent understanding that all knew what
the legal issue was”).
        Having concluded that the issue was preserved, we
turn to the merits. “A court cannot impose fees based on
pure speculation that a defendant has funds to pay the fees
or may acquire them in the future.” State v. Pendergrapht,
444                                          State v. Geddeda

, 

 (2012). That is, there
“must be some information [in the record] from which the
court can find the statutorily required factual predicate to
imposition of fees: that the defendant ‘is or may be able to
pay’ them.” 

 at 634 (quoting ORS 161.665(4)). “A court
cannot perform that task if it has no information regarding
the defendant’s existing or potential financial resources.” 

Evidence of an ability to pay “ ‘may consist of information
about the defendant’s financial resources, educational background, work history, and anticipated future employment or
educational status, to the extent there is a nonspeculative
basis for assessing that future status.’ ” State v. Morales, 

, 

 (2020) (quoting State v. Mendoza,

, 

 (2017)). It is the state
that bears the burden of proving that a defendant is or may
be able to pay attorney fees. State v. Kanuch, 

, 

 (2009).
         Defendant asserts that the record does not permit
a finding that the defendant was able to pay fees because,
at the time of sentencing, he was unemployed and did not
have any offer of employment; thus, any finding that he
could obtain future employment was speculative. The state
responds that the record supports a finding that defendant
had the ability to pay the fees because he posted a security amount ($2,500) under a security-release agreement,
which provided that defendant understood that the security amount would “be applied to any fines, fees, restitution
or court-ordered financial obligation.” Further, the state
responds by asserting that there was evidence that defendant had been employed as a caregiver, which was sufficient
for the court to find an ability to pay. For the following reasons, we disagree with the state that it met its burden to
establish that defendant had the ability to pay attorney fees.
          With respect to the state’s argument that the
security-release agreement was evidence in the record to
demonstrate that defendant had the ability to pay attorney
fees, we see nothing in the record that reflects that the trial
court relied on the security-release agreement as a basis to
determine that defendant had the ability to pay attorney
fees. Cf., e.g., State v. Casas, 

, 

 (2018) (where “the trial court ordered defendant to pay
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a $184 court-appointed attorney fee from a security amount
totaling $7,500 that had been previously posted”). On the
contrary, the trial court appears to have relied on the information it elicited from defendant about his employment
status.
          Further, the security-release agreement on which
the state now relies as evidence of defendant’s ability to pay
could have been introduced below, or the state could have
asked the trial court under ORS 135.265(2) to apply defendant’s security deposit after having determined that defendant had the ability to pay. See Morales, 

(noting that “the fact that there are surplus funds from a
security deposit that could be available to cover costs under
ORS 135.265(2) does not absolve the trial court of its responsibility to consider whether a defendant has the ability to
pay, as required by ORS 161.665(4)”). Had it done so, the
court could have determined whether the funds deposited
by defendant, in fact, belonged to him. Cf. Morales, 

 (when funds deposited by a third party “belong to
a defendant, they may be used to satisfy the defendant’s
financial obligations”).1 Consequently, because the predicate
conditions for considering the state’s argument concerning
defendant’s security deposit are not met, we do not consider
it. See Outdoor Media Dimensions, Inc. v. State of Oregon,

, 

 (2001) (explaining that,
“even if the record contains evidence sufficient to support an
alternative basis for affirmance, if the losing party might
have created a different record below had the prevailing
party raised that issue, and that record could affect the disposition of the issue, then we will not consider the alternative basis for affirmance”).
          Turning to the evidence that the trial court did
consider—defendant’s employment history and status—we
conclude that it was insufficient as a basis for the trial court
     1
       Just as funds deposited by a third party may belong to the defendant, funds
deposited by a defendant may belong to a third party. How a defendant acquired
the funds to post the security deposit may affect the ability to pay attorney fees.
See Casas, 

 (commenting that “defendant’s security deposit
appears to provide sufficient evidence to support the trial court’s imposition of
court-appointed attorney fees, even if a trial court, when properly presented with
questions in the first instance as to how defendant acquired the funds for a security deposit, might reach a different result”).
446                                        State v. Geddeda

to find that defendant had the ability to pay attorney fees.
At the time of sentencing, defendant was unemployed and
there is nothing in the record that indicates that he had any
prospect of employment other than a job for which he had
applied. There was no evidence that that prospect was likely.
Nor, as the state suggests, was there anything in the record
indicating that defendant had worked as a caregiver, much
less evidence about how much defendant had earned in the
past, how much he had been able to work, or the reasons
for his unemployment. Cf. State v. Moreno-Hernandez, 

, 

 (2018), rev’d in part on other
grounds, 

, 

 (2019) (plain error to
impose attorney fees on the basis “that defendant appeared
healthy at the time of sentencing and had worked in the
past,” because it did “not allow a nonspeculative, objective
assessment of defendant’s present or future capacity to pay
fees”).
        Portion of judgment requiring defendant to pay
attorney fees reversed; otherwise affirmed.