State v. Nelson

                                   802

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
Submitted March 17, portion of judgment requiring defendant to pay $2,107.54
    in extradition costs reversed, otherwise affirmed September 7, 2023


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
               STEVEN ANTHONY NELSON,
                    Defendant-Appellant.
               Washington County Circuit Court
                    19CR67534; A176930


   Ricardo J. Menchaca, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
   Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
   JACQUOT, J.
   Portion of judgment requiring defendant to pay $2,107.54
in extradition costs reversed; otherwise affirmed.
Nonprecedential Memo Op: 

 (2023)              803

         JACQUOT, J.
         Defendant was convicted of two counts of fourthdegree assault constituting domestic violence, ORS 163.160,
and one count of strangulation, ORS 163.187. Defendant
absconded from probation, and after he was found in
Missouri and returned to Oregon, the trial court revoked
probation. The court sentenced defendant to 14 months of
imprisonment and two years of post-prison supervision
and ordered him to pay $2,107.54 in extradition costs. See
ORS 161.665(7) (court may impose extradition costs). In one
assignment of error, defendant argues that the trial court
erred because it did not make findings regarding his ability to pay. ORS 161.665(4). The error is not preserved, and
defendant asks that we review and correct it as plain error.
We conclude that the imposition of extradition costs was
plain error and reverse that portion of the judgment; we
otherwise affirm.
         To be plain and warrant consideration for correction, an unpreserved error must be “an error of law, obvious
and not reasonably in dispute, and apparent on the record
without requiring the court to choose among competing
inferences.” State v. Vanornum, 

, 

 (2013). If we determine the error is plain, we must then
decide whether to exercise our discretion to correct it. Ailes v.
Portland Meadows, Inc., 

, 

 (1991).
A trial court may only order a defendant to pay costs if it
determines, and the record supports, that the defendant “is
or may be able” to pay such costs. ORS 161.665(4); State v.
Eshaia, 

, 

 (2012). A trial
court does not need to make express findings about a defendant’s ability to pay, but the record must contain affirmative
evidence to support the implicit finding. State v. Mickow, 

, 

 (2016). We review a trial
court’s imposition of costs for legal error. State v. Rowling,

, 

 (2013), rev den, 

 (2014).
         Here, the trial court did not address defendant’s
ability to pay, and there is insufficient evidence in the
record to show that defendant is or may be able to pay the
costs. The state relies on defendant’s young age, college
804                                           State v. Nelson

attendance, and incomplete training in welding, along with
his travel to Missouri when he absconded, and the victim’s
statement that he bought new clothes and shoes upon his
initial release from jail at some unspecified time before the
sentencing hearing. There is no record of what defendant
studied in school, how much of the welding training program he completed, whether he could return to that program, what it cost to travel to Missouri, or the cost of any
clothing. Defendant was sentenced to prison, and there was
no evidence of his available financial resources at the time
of sentencing. Defendant will leave prison with a felony conviction in his criminal history. That evidence is insufficient
to permit “an objective, nonspeculative assessment of the
defendant’s present or future capacity to pay” costs. State v.
Mendoza, 

, 

 (2017).
         The error is grave considering defendant’s prison
term, the amount of costs ordered, and the absence of evidence in the record suggesting that defendant will be able
to pay the costs. See State v. Fleet, 

, 

 (2015) (exercising discretion to correct plain error
considering, among other circumstances, amount of fees,
prison term, and lack of evidence in the record suggesting
that defendant would be able to pay the fees). Therefore, we
will exercise our discretion to correct the error.
        Portion of judgment requiring defendant to pay
$2,107.54 in extradition costs reversed; otherwise affirmed.