State v. McCarthy

305 Or.App. 658

473 P.3d 74

STATE of Oregon, Plaintiff-Respondent,

v.Craig Abe Alan MCCARTHY, Defendant-Appellant.

A167384 (Control)

A167385

Court of Appeals of Oregon.

Submitted September 23, 2019.

August 5, 2020

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Andrew D. Robinson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.

ORTEGA, P. J.

Defendant appeals two supplemental judgments, arguing for the first time on appeal that the trial court erred when it ordered him in each judgment to pay $120 toward court-appointed counsel, because the record lacked information that he had the financial resources to pay those fees. Defendant argues that he was not required to preserve his claim of error on the facts of this case. Alternatively, he argues, and the state agrees, that the trial court plainly erred in imposing the fees.

A court collection clerk—not a judge—signed the supplemental judgments on appeal in this case. After the briefing was complete, we requested supplemental briefing from the parties addressing the court collection clerk's authority to sign the supplemental judgments. The parties subsequently filed a joint motion asking us to decide the merits by unpublished order under ORAP 10.35, stipulating that the trial court erred in ordering the attorney-fee contribution amount absent any evidence in the record of defendant's ability to pay. Without ruling on the parties’ joint motion, we renewed our earlier request for supplemental briefing on the authority of the court collection clerk to sign the supplemental judgments which, as we address below, affects our capacity to review the judgments on appeal.

In the state's supplemental brief, it contends that the court collection clerk had the authority to sign the supplemental judgments pursuant to Chief Justice Order No. 04-031 (CJ Order No. 04-031) and Presiding Judge of Clackamas County Circuit Court General Order No. 2015-06 (PJ Order No. 2015-06). Defendant disagrees that those orders or any other legal authority provide the court collection clerk with the authority to sign the supplemental judgments. As we shall explain, we agree with the state that CJ Order No. 04-031 and PJ Order No. 2015-06 legally authorize the court collection clerk to sign the supplemental judgments on appeal in this case. On the merits, we conclude that the rules of preservation do not apply here and that, as the parties agree, the trial court erred in imposing attorney fees on this record.

The following procedural facts are undisputed. On July 10, 2017, defendant was convicted of first-degree failure to appear (Case No. 17CR36649) and unlawful possession of heroin (Case No. 17CR23252). Defendant was sentenced to, among other conditions, probation.

On January 3, 2018, defendant was arraigned in-custody on allegations that he had violated his probation on both cases. While the court order signed by Judge Ulanda Watkins from that hearing does not include any information about the appointment of an attorney or the imposition of attorney fees,¹ the transcript reflects that the court appointed an attorney at the hearing but did not impose attorney fees. That same day, however, the court collection clerk signed two judgments titled, "SUPPLEMENTAL JUDGMENT RE: COURT-APPOINTED ATTORNEY FEES." The top of each judgment notes that defendant was determined to be financially eligible for court-appointed counsel and that counsel was appointed. Further, each judgment states:

"THE COURT ORDERS:

"Payment of the amounts listed in the Money Award are due as follows, payable to the State of Oregon:

"Amount ordered must be paid in full by 2/2/2018

"* * * * *

"MONEY AWARD

"* * * * *

"3. The total amount awarded by this judgment is $120.00 [.]"

(Boldface, underline, and uppercase in original). And, although the court collection clerk's signature appears on each supplemental judgment below the court's order, next to the entry in the official court register for the filing of the "Order—Appointing Counsel" appears the note, "Judicial Officer: Watkins, Ulanda." Further, next to the entries in the official court register for the filing of each of the supplemental judgments that were signed by the clerk appears the note, "Judicial Officer: Authority, Administrative." Defendant appeals those judgments, arguing that the trial court erred in ordering him to pay attorney fees without evidence that he had the ability to pay them.

Before we may reach the merits of the parties’ arguments, we must address whether the court collection clerk was authorized to sign the supplemental judgments at issue. That question determines whether we may consider defendant's appeal. See ORS 18.038(4)(c) (providing that a judgment document must include the "signature of the judge rendering the judgment, or the signature of the court administrator if the court administrator is authorized by law to sign the judgment document"); ORS 18.245 (providing that the judgment "must comply with the requirements of ORS 18.038(4)," and that those requirements are "jurisdictional for the purposes of appeal of [the] judgment"); State ex rel. Juv. Dept. v. J. W. , 345 Or. 292, 299, 193 P.3d 20 (2008) (dismissing an appeal where the judgment did not meet the signature requirements of ORS 18.038(4) ). We have an independent duty to ensure that a judgment is appealable even when, as in this case, the parties have not raised the issue. A. M. v. N. E. D. , 287 Or. App. 36, 37-38, 400 P.3d 1036 (2017).

We begin by setting out the relevant law. A court is authorized to order a defendant to contribute toward the costs of court-appointed counsel in two ways: at the conclusion of a defendant's case at sentencing, ORS 151.505, ORS 161.665, or, as in this case, before the conclusion of a case once it is determined that the defendant is financially eligible for court-appointed counsel, ORS 151.487. ORS 151.487(1) provides, in part:

"If in determining that a person is financially eligible for appointed counsel * * *, the court finds that the person has financial resources that enable the person to pay in full or in part the administrative costs of determining the eligibility of the person and the costs of the legal and other services to be provided at state expense that are related to the provision of appointed counsel, the court shall enter a limited judgment requiring that the person pay to the Public Defense Services Account * * * the amount that it finds the person is able to pay without creating substantial hardship in providing basic economic necessities to the person or the person's dependent family. * * *"

In 2004, Chief Justice Carson issued CJ Order No. 04-031 to establish, among other objectives, uniform procedures for circuit courts to follow in implementing the requirements of ORS 151.487. As the Chief Justice noted in the order, the procedures were used partially to help manage and reduce unnecessary cost and workload on judges and court staff resulting from the programs to recover court-appointed attorney fees. The order states that, "[w]hen a court orders payment under [ ORS 151.487 ] for a pending probation violation in a criminal * * * case, the court will reduce the order to a supplemental judgment * * * and cause the supplemental judgment to be entered in the register."² Further, CJ Order No. 04-031 "authorizes courts to delegate, by presiding judge order * * * to trial court administrators of their courts the authority to sign * * * judgments and orders [issued under ORS 151.487 ], subject to judicial review under ORS 151.487(5)."

In 2016, Presiding Judge Herndon of the Clackamas County Circuit Court issued PJ Order No. 2015-06, authorizing the "Trial Court Administrator, * * * through deputy court clerks," to sign and enter limited or supplemental judgments for court-appointed counsel.

The state argues that the court collection clerk's authority to sign the judgments in this case derives from CJ Order No. 04-031, and that the presiding judge of the Clackamas County Circuit Court was acting pursuant to the authority of the CJ order when he delegated the authority to the trial court administrator, through deputy court clerks, to sign the supplemental judgments. Defendant disagrees, arguing that the Chief Justice did not have the authority to authorize presiding judges to delegate the signing of judgments issued under ORS 151.487 to trial court administrators. He further contends that, even if the Chief Justice was legally so authorized, CJ Order No. 04-031 authorizes the delegation of the signing of judgments to trial court administrators only, not to them through deputy court clerks.³

Under ORS 18.038(4)(c), a court administrator may sign a judgment document only if "authorized by law."⁴ Because CJ Order No. 04-031 relies on, as relevant to this appeal, ORS 1.002 as the authority under which the Chief Justice issued the procedures in the order, we begin by examining the authority ORS 1.002 confers on the Chief Justice and presiding judges of the circuit courts.

Pursuant to ORS 1.002, the legislature has designated the Chief Justice as "the administrative head of the judicial department" who is required to "exercise administrative authority and supervision over the courts of this state consistent with applicable provisions of law and the Oregon Rules of Civil Procedure." ORS 1.002(1). The legislature has granted the Chief Justice the power to "[m]ake rules and issue orders," ORS 1.002(1)(a), and to take "any other action appropriate to the exercise of the powers specified in [ ORS 1.002 ] and other law, and appropriate to the exercise of administrative authority and supervision by the Chief Justice over the courts of this state," ORS 1.002(1)(k).

Further, ORS 1.002(9) allows...