Oregon Appellate Ct - July 15, 2015

by: Sean McGuire and Abassos • July 15, 2015 • no comments

Appellate Procedure - Invited Error – Defense Counsel’s Responses to Court’s Questions About Hourly Rates Do Not “Invite” an Erroneous Decision to Impose Attorney’s Fees.

After a court plainly errs in imposing attorney’s fees without considering ability to pay, a defense attorney does not invite the previous error by discussing hourly rates. Here, the Court of Appeals reasons that, because the attorney never affirmatively misstated the law; because the colloquy was about his rates and not about the defendant’s ability to pay; and because the colloquy occurred after the court’s decision to assess fees, the error was wholly the court’s and was not invited by counsel. Further, although the defendant did not object to the imposition of fees, the unpreserved error is plain and reversible on appeal because the error would impose a substantial burden on an incarcerated defendant, and because the defendant gained no strategic benefit by failing to object. Assessment of attorney’s fees reversed; otherwise affirmed. State v. Brown, 272 Or.App. 321 (2015).