State v. Covington

366                     May 7, 2025                 No. 405

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                  STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
              WESLEY KIRT COVINGTON,
                  Defendant-Appellant.
             Clackamas County Circuit Court
                  23CN03567; A182603

   Ann M. Lininger, Judge.
   Argued and submitted April 3, 2025.
   Emma Izaguirre, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
   Emily N. Snook, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum Attorney General, and Benjamin Gutman,
Solicitor General.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
   TOOKEY, P. J.
   Portion of judgment imposing court-appointed attorney
fees reversed, otherwise affirmed.
Nonprecedential Memo Op: 

 (2025)             367

        TOOKEY, P. J.
         Defendant challenges the trial court’s imposition of
$429 in court-appointed attorney fees after he admitted to
contempt of court. In a single assignment of error, defendant
contends that the evidence in the record is legally insufficient
regarding his ability to pay the attorney fees. The state contends that the assignment of error is not preserved, that any
error is not plain error, and that, in any event, we should not
exercise our discretion to correct any error. We disagree with
the state and conclude that defendant sufficiently preserved
the assignment of error and that the record below regarding
his ability to pay is legally insufficient. We therefore reverse
the trial court’s imposition of attorney fees.
         Regarding preservation, at the sentencing hearing, defense counsel asked the court that “fines and fees be
waived” as defendant had “served some time on a related
case and just got out” and “he does not have a lot of money
right now.” We think that was sufficient to alert the trial
court to the issue of whether defendant is or may be able
to pay the $429 in court-appointed attorney fees. Peeples v.
Lampert, 

, 191 P3d 637 (2008) (“Preservation
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.”). In reaching that conclusion, we note
that the trial court expressly considered the issue, finding
that defendant was “in a position to pay attorneys’ fees.”
         Regarding the sufficiency of evidence, the state
notes that when the trial court asked defendant, “What
kind of work do you do when you’re working for pay?” defendant answered, “I was a site safety coordinator on commercial construction projects.” The state argues that that shows
“defendant had a work history such that he may be able
to pay the fees.” The state also points to defense counsel’s
statement that defendant “does not have a lot of money right
now.” Thus, the state concludes, a plausible inference is that
defendant had “some funds available to him at the time of
sentencing” and also his “probationary sentence … would
not prevent defendant from working.”
368                                                   State v. Covington

         In reviewing a trial court’s finding that a defendant is or may be able to pay attorney fees, “we review that
finding to determine whether the evidence in the record is
legally sufficient to support that finding.” State v. Mickow,

, 371 P3d 1275 (2016). “There must be
some information from which the court can find the statutorily required factual predicate to imposition of the fees,”
and “[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, 

, 284 P3d 573 (2012). It is the state’s burden to prove
defendant is or may be able to pay attorney fees. State v.
Coverstone, 

, 320 P3d 670 (2014).
         With that framework in mind, we do not think that
this record supports the trial court’s determination that
defendant could pay the attorney fees. As defendant notes,
he informed the court he “served some time on a related case
and just got out” and that “he does not have a lot of money
right now.”1 As defendant also notes, the record does not
indicate that he “was employed at the time of sentencing” or
“that he would be again.” Although the trial court inquired,
through a single question, about defendant’s work history
and then stated, “I am finding that you’re in a position to
pay attorneys’ fees,” under the circumstances of this case, we
think the evidence was legally insufficient. Compare State v.
Dylla, 

, 365 P3d 662 (2015) (evidence
of the “defendant’s long history of employment and prospects for future employment, college degree, ability to meet a
financial obligation, and 30-day jail sentence are sufficient to
support a reasonable inference of [the] defendant’s ability to
pay the amount imposed by the court”), with State v. Zepeda,

, 360 P3d 715 (2015) (record failed to
support imposition of attorney fees because the “record does
not reflect that [the] defendant either had a source of income,
an educational background, or the prospect of future employment, nor does it contain any other indication that defendant
had, or might have, the ability to pay the fees”).
         Portion of judgment imposing court-appointed attorney fees reversed, otherwise affirmed.
   1
     Defendant asserts in his opening brief that he “served a term of imprisonment of 125 months.” The state does not dispute that assertion.