State v. Dunham

30 November 6, 2024 No. 797

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

KENNETH MARION DUNHAM,

aka Kenneth M. Dunham,

Defendant-Appellant.

Washington County Circuit Court

C083014CR, C040376CR, D043244M;

A178148 (Control), A178154, A178155

Oscar Garcia, Judge.

Argued and submitted May 15, 2024.

Brian Hardingham, California, argued the cause for

appellant. Also on the briefs were Public Justice, California;

Sonja Good Stefani and Metropolitan Public Defender;

Emily Teplin Fox, Kelsey Heilman and Oregon Law Center.

Also on the opening brief was John He, California.

Colm Moore, Assistant Attorney General, argued the

cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Aliza B. Kaplan and Lewis & Clark Law School filed the

brief amicus curiae for Lewis & Clark Law School Criminal

Justice Reform Clinic, American Civil Liberties Union, Inc.,

Oregon Tradeswoman, Oregon Consumer Justice, Fines &

Fees Justice Center, and National Consumer Law Center.

Rosalind M. Lee and Nora E. Coon filed the brief amicus

curiae for Oregon Criminal Defense Lawyers Association.

Before Aoyagi, Presiding Judge, Egan, Judge, and Kistler,

Senior Judge.*

______________

*

Egan, J., vice Jacquot, J.

Cite as 336 Or App 30 (2024) 31

AOYAGI, P. J.

Vacated and remanded.

32 State v. Dunham

AOYAGI, P. J.

In each of these consolidated criminal cases, defen-

dant moved the trial court to waive or convert to commu-

nity service the unpaid fines, unitary assessments, and

costs imposed on him years ago as part of his sentencing

for various criminal convictions. Defendant represented to

the court that he cannot afford to pay those financial obli-

gations because he cannot find employment, that he can-

not find employment because of his criminal history, and

that he cannot expunge his criminal history because of the

unpaid financial obligations.1 The trial court denied the

motions.

On appeal, defendant argues that the trial court

erred on both statutory and constitutional grounds. The

state challenges appealability and also defends the court’s

ruling on the merits. As described below, we conclude

(1) that the orders are appealable; (2) that the trial court’s

ruling on waiver of costs under ORS 161.665(5) warrants a

remand for clarification of the court’s reasoning; (3) that the

trial court did not err in declining to waive fines under ORS

161.685(5); and (4) that defendant’s constitutional argu-

ments are inadequately developed to address. Accordingly,

we vacate and remand for reconsideration of the portions of

the orders addressing waiver of costs.

I. PROCEDURAL HISTORY

The relevant facts are undisputed. Between 2004

and 2017, in three separate cases, defendant was convicted

of offenses committed prior to 2009. He was sentenced to

probation in each case. The court also imposed fines totaling

$792, unitary assessments totaling $174, and costs (mostly

for court-appointed attorney fees) totaling $1,042. Since

sentencing, interest and various administrative fees have

accrued due to nonpayment. Defendant paid about $150 in

2017 and 2018, but the rest remains owing. Except for the

unpaid debt, defendant has completed serving his sentences.

1

Amici describe defendant’s situation as a “debt trap” and assert that it is a

situation that “is neither unique nor rare” for criminal defendants. They point to

a growing body of research regarding the “troubling twin consequences of court

debt that cannot possibly be repaid and criminal records that prevent employ-

ment and financial security.”

Cite as 336 Or App 30 (2024) 33

In January 2022, defendant filed motions to waive

the unpaid financial obligations or, alternatively, to con-

vert them to community service. As legal authority for the

motions, defendant relied on ORS 161.665(5), which allows

trial courts to excuse or reduce costs in certain circum-

stances; ORS 161.685(5), which allows trial courts to excuse

or reduce fines in certain circumstances; and the Excessive

Fines Clauses of the state and federal constitutions, which

prohibit the imposition of excessive fines.2 See UTCR 4.120

(allowing a criminal defendant to “file a motion in the

criminal case requesting that the court reduce, modify, or

waive unpaid fines, fees, and costs * * * as provided in ORS

161.685(5), ORS 161.665(5), * * * or other applicable legal

authority”).

In a supporting memorandum, defendant described

both his reformation since he committed his crimes and

his family’s current financial situation. He explained that

he committed his crimes during a period in which “he

was struggling with addiction and suffered mental health

issues.” He was “unable to maintain employment” and “not

able to function” for many years. But since 2008, he has

stopped using drugs and engaged in treatment. That per-

sonal success put a stop to his criminal conduct, but it did not

resolve his financial struggles. He explained that his crim-

inal record—especially his felony convictions—hampers his

ability to find employment. That difficulty was exacerbated

when defendant developed a physical disability about a year

before filing his motions, which prevents him from plying

his trade as a mechanic. At the time of the hearing, defen-

dant and his wife and three children had regained housing,

after three years of houselessness. The family was living off

defendant’s disability benefits, his wife’s part-time income,

and food stamps. Their expenses outstrip their income.

The trial court held a hearing on defendant’s

motions, at which the state opposed the relief sought. No

2

In neither the trial court nor on appeal has either party addressed whether

ORS 161.665(5) or ORS 161.685(5) apply to the waiver of unitary assessments.

Unitary assessments are no longer imposed but were a type of “penal obligation

in the nature of a fine.” Former ORS 137.290 (2009), repealed by Or Laws 2011,

ch 597, § 118. For present purposes, we assume without deciding that unitary

assessments qualify as fines under ORS 161.685(5).

34 State v. Dunham

testimony or other evidence was offered, but defendant rep-

resented to the court that, given the financial hardship fac-

ing his family, “he will never be able to pay these fines off,

which means he will never be able to expunge these cases

from his record.”

The trial court denied the motion, based on the age

of the cases and defendant’s neglect in not paying the fines

for such a long time:

“[THE COURT:] So, you know, the problem I have

here, I mean, this is a very old case. Okay. And, you know,

I’m fair to people, and I’ve waived fines before, you know,

understanding the situation.

“THE DEFENDANT: Right. I—

“THE COURT: But these are very old cases where

back then I don’t know what his situation was. They were

just neglected. They weren’t paid for. I don’t know if he was

working, or what his situation was.

“THE DEFENDANT: I was not.

“THE COURT: So—well, you know, and then he’s—

you know, his SSI—or—I’m sorry he’s disabled now.

“So, I just don’t have—you know, part of the obligations

in order to successfully complete a probation, for the record,

is to, you know, pay your fines and fees. All right?

“So, anything further from the State?

“[PROSECUTOR]: No, Your Honor.

“THE COURT: Okay. Based on this record, I’m going

to deny the motion at this time.”

The court declined defendant’s request to say more. Defen-

dant appeals the denial of his motions to waive fines and

costs.

II. APPEALABILITY

We begin as we must with the question of whether

the trial court’s orders are appealable. “To exist, the right of

appeal must be conferred by a statute.” State v. K. P., 324 Or

1, 4, 921 P2d 380 (1996). Absent such a statute, we “may not

reach any substantive issues presented.” Id.

Cite as 336 Or App 30 (2024) 35

Defendant argues that the orders are appealable

under ORS 19.205(5), which provides:

“An appeal may be taken from the circuit court in any

special statutory proceeding under the same conditions, in

the same manner and with like effect as from a judgment

or order entered in an action, unless appeal is expressly

prohibited by the law authorizing the special statutory

proceeding.”

The state disputes that these cases involve “special statu-

tory proceedings.” In the state’s view, defendant’s motions

are “intimately bound up with his underlying criminal

proceedings” and therefore are governed by ORS 138.035,

i.e., the statute governing direct appeals in criminal cases.

That statute, the state correctly points out, would not confer

appellate jurisdiction in these cases. As such, the question

before us is whether this appeal is taken from a “special

statutory proceeding.”3

There is no statutory definition of a “special statu-

tory proceeding.” Garganese v. Dept. of Justice, 318 Or 181,

185, 864 P2d 364 (1993). Since the statute’s enactment in

1927, the appellate courts have endeavored to define the

phrase by identifying the crucial attributes of a “special

statutory proceeding.” See State v. Threet, 294 Or 1, 4-6,

653 P2d 960 (1982) (describing the history of the phrase and

early case law construing it). As summarized by the Oregon

Supreme Court, the crucial attributes of a “special statutory

proceeding” are that it is “a separate and distinct judicial

proceeding, with clearly defined parties, that does not dis-

rupt other judicial proceedings” and that it is a “ ‘final and

complete determination of the matter.’ ” Garganese, 318 Or

at 186 (quoting Dept. of Rev. v. Universal Foods Corp., 311

Or 537, 544, 815 P2d 1237 (1991)). Those attributes are eval-

uated in a functional—rather than a formalistic—manner.

State v. Hart, 188 Or App 650, 654, 72 P3d 671, rev den, 336

Or 126 (2003).

For instance, a proceeding can qualify as a “separate

and distinct judicial proceeding” even if it arises, as a formal

matter, within the bounds of an existing criminal case. In

3

Defendant also makes an alternative jurisdictional argument under ORS

19.205(3), which we need not reach given our decision under ORS 19.205(5).

36 State v. Dunham

State v. Branstetter, 332 Or 389, 392, 29 P3d 1121 (2001), a

criminal defendant appealed an order requiring the forfei-

ture of his animals to an animal care agency during the pen-

dency of his criminal case. As required by statute, the forfei-

ture order was issued within the same case number as his

criminal prosecution. Id. at 393 & n 4. However, the forfeiture

was not premised upon whether the defendant was guilty of

the charged crime. Instead, it was premised on whether the

animal care agency could establish probable cause of abuse,

neglect, or abandonment of the forfeited animals at a forfei-

ture hearing. Id. at 393 & n 6. The Supreme Court concluded

that, although the forfeiture proceeding arose within the

bounds of a criminal case and in fact depended on the crim-

inal case for its existence, it did not “arise out of the crimi-

nal action, resolve any controversy in the criminal action, or

otherwise affect or depend on the substance of the criminal

action.” Id. at 398-99; see also K. P., 324 Or at 6 (holding that

an order denying in part the defendant’s motion to seal the

records of a criminal conviction was appealable as a “special

statutory proceeding,” notwithstanding that the order was

entered under the same case number as the criminal case).

By contrast, where a proceeding is intended to cor-

rect an error in a criminal case or otherwise obtain a new

trial, we have held that it is too intimately bound up with

the criminal case to qualify as a “special statutory proceed-

ing.” For example, in State v. Hart, the defendant appealed

an order denying his motion to correct the judgment in a

criminal case by merging two convictions. 188 Or App at

652. We held that the motion to correct was not a “special

statutory proceeding” because the motion (1) arose “directly

out of the criminal action,” in that the statute authorizing

the motion was directed to the “sentencing court”; (2) sought

to “resolve a controversy in the criminal action—whether

the judgment in the criminal action [was] erroneous”; and

(3) sought to “affect the substance of the underlying crimi-

nal action,” in that it would “result in a modification of the

terms of a defendant’s sentence.” Id. at 654-55.

Similarly, in State v. Johnson, we held that the

denial of a motion requesting DNA testing was not a “special

statutory proceeding” because the motion was “intimately

Cite as 336 Or App 30 (2024) 37

bound up with the underlying criminal proceeding.” 254

Or App 447, 455, 295 P3d 677, rev den, 353 Or 747 (2013).

“The purpose of the proceeding is to allow the defendant to

obtain evidence of his innocence of the conduct in question

and, ultimately, to set aside the convictions and obtain a

new trial in the case.” Id.4

Here, the state argues that this case is compara-

ble to Hart and Johnson because the remedy that defen-

dant sought would affect the substance of the underlying

criminal action by modifying the terms of his sentence.

Defendant disagrees. He asserts that he is not challenging

the lawfulness of his original sentences, nor is he seeking to

collaterally attack them. Instead, he is availing himself of a

separate and distinct statutory procedure that allows him

to seek the waiver of his financial obligations based on his

current financial circumstances. He compares this case to

K. P., in which an order denying a motion to seal the records

of a criminal conviction was appealable despite the fact that

the remedy sought would affect the underlying criminal

case, because that remedy was not premised on any legal

challenge to the underlying prosecution.

We are persuaded that defendant has the bet-

ter argument. His appeals arise from a statutory mecha-

nism that allows trial courts to waive or reduce previously

imposed financial obligations in criminal cases based on

the defendant’s present circumstances, without regard to

the lawfulness of their original imposition. Defendant is not

attempting to relitigate his guilt or obtain a new sentencing

hearing. We therefore agree with defendant that this case is

most analogous to Branstetter and K. P. Although the pro-

ceeding arises within the confines of defendant’s criminal

cases, it is concerned with factual findings and legal mat-

ters that were not at issue in defendant’s underlying crim-

inal cases and do not concern the propriety of his original

criminal prosecutions. In short, the proceeding contains the

core attributes that the Supreme Court has identified for

a “special statutory proceeding”—a separate and distinct

judicial proceeding, with clearly defined parties, that does

4

Following our decision in Johnson, the legislature enacted a statute that

authorizes the appeal of an order denying DNA testing. State v. Diaz-Avalos, 294

Or App 37, 41, 428 P3d 932 (2018), rev den, 365 Or 502 (2019) (discussing same).

38 State v. Dunham

not disrupt other judicial proceedings and that is a final

and complete determination of the matter. The orders are

appealable.

III. STATUTORY ANALYSIS

We turn now to the merits and begin with defen-

dant’s statutory arguments. See, e.g., State v. Wolfe, 368 Or

38, 43, 486 P3d 748 (2021), cert den, ___ US ___, 142 S Ct

1219 (2022) (addressing statutory arguments before con-

stitutional arguments in accordance with Oregon’s “first-

things-first” approach). As recounted above, defendant

moved for the waiver or conversion of his financial obli-

gations under ORS 161.665(5) and ORS 161.685(5). Those

statutes deal with costs and fines, respectively. Defendant

argues that the trial court abused its discretion in denying

his motions because the court based its rulings on “consid-

erations not contemplated by” those statutes. Identifying

the proper considerations contemplated by those statutes

is a question of statutory construction, which requires us to

examine each statute’s text, context, and any helpful legis-

lative history to determine the enacting legislature’s intent.

State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).

We address each statute in turn.

A. Waiver of Costs under ORS 161.665(5)

ORS 161.665(1) authorizes a sentencing court to

impose in the judgment a money award for “all costs specially

incurred by the state in prosecuting the defendant.” That

includes reasonable attorney fees for court-appointed coun-

sel. ORS 161.665(1), (2). ORS 161.665(4) places an important

guardrail on that authority, however, by requiring a finding

at sentencing that the defendant is or may be able to pay,

so as to reduce the risk that costs will be imposed on defen-

dants who cannot pay them:

“The court may not sentence a defendant to pay costs

under this section unless the defendant is or may be able to

pay them. In determining the amount and method of pay-

ment of costs, the court shall take account of the financial

resources of the defendant and the nature of the burden

that payment of costs will impose.”

Cite as 336 Or App 30 (2024) 39

ORS 161.665(5), in turn, gives the court post-sentencing

authority to relieve a defendant of previously imposed costs

based on manifest hardship:

“A defendant who has been sentenced to pay costs under

this section and who is not in contumacious default in the

payment of costs may at any time petition the court that

sentenced the defendant for remission of the payment of

costs or of any unpaid portion of costs. If it appears to the

satisfaction of the court that payment of the amount due

will impose manifest hardship on the defendant or the

immediate family of the defendant, the court may enter

a supplemental judgment that remits all or part of the

amount due in costs, or modifies the method of payment

under ORS 161.675.”5

Although subsection (5) is the direct focus of our

inquiry in this case, subsection (4) provides important con-

text, so we begin with it. Subsection (4) prohibits the impo-

sition of costs unless the court affirmatively finds that a

defendant “is or may be able to pay them.” Moreover, the

state bears the burden of proving that ability to pay. State

v. Geddeda, 313 Or App 440, 444, 493 P3d 1112 (2021). A

trial court commits plain error if it imposes costs without

making the necessary finding based on legally sufficient

evidence. State v. Meyer, 313 Or App 611, 613, 496 P3d 1117

(2021).

While subsection (4) seeks to avoid the imposition of

costs upon a defendant who cannot pay them or likely will

not be able to pay them, subsection (5) acts as an additional

safety valve for situations where a defendant was deemed

able to pay at the time of sentencing but later faces circum-

stances that make payment a manifest hardship to the

defendant or their family. And, indeed, the existence of that

safety valve has been instrumental in upholding the consti-

tutionality of ORS 161.665 as a whole. The United States

Supreme Court summarized the operation of ORS 161.665

(1973) in this way:

5

We note that ORS 161.665 has been amended a number of times over the

years. For example, what is now ORS 161.665(5) originally allowed a court to

sentence the defendant to pay costs only if the defendant “is or will be able to pay

them,” but the quoted language was amended to “is or may be able to pay them”

in 1981. Or Laws 1981, ch 3, § 120 (Spec Sess). No one has suggested that any

historical amendments to ORS 161.665 are material to our analysis.

40 State v. Dunham

“[T]he recoupment statute [(ORS 161.665 (1973))] is

quite clearly directed only at those convicted defendants

who are indigent at the time of the criminal proceedings

against them but who subsequently gain the ability to pay

the expenses of legal representation. Defendants with no

likelihood of having the means to repay are not put under

even a conditional obligation to do so, and those upon whom

a conditional obligation is imposed are not subjected to col-

lection procedures until their indigency has ended and no

‘manifest hardship’ will result. The contrast with appoint-

ment-of-counsel procedures in States without recoupment

requirements is thus relatively small: a lawyer is provided

at the expense of the State to all defendants who are unable,

even momentarily, to hire one, and the obligation to repay

the State accrues only to those who later acquire the means

to do so without hardship.”

Fuller v. Oregon, 417 US 40, 46, 94 S Ct 2116, 40 L Ed 2d 642

(1974) (footnote omitted).

In rejecting an equal protection challenge to ORS

161.665 (1973), the Court noted that a defendant has “the

opportunity to show at any time that recovery of the costs of

his legal defense will impose ‘manifest hardship[.]’ ” Id. at 47.

Similarly, in rejecting an argument that ORS 161.665 (1973)

unconstitutionally infringes on the right to court-appointed

counsel, the Court stated, “The Oregon statute is carefully

designed to insure that only those who actually become capa-

ble of repaying the State will ever be obliged to do so. Those

who remain indigent or for whom repayment would work

‘manifest hardship’ are forever exempt from any obligation

to repay.” Id. at 53 (footnote omitted); accord State v. Mickow,

277 Or App 497, 502, 371 P3d 1275 (2016) (noting that ORS

161.665 survived constitutional challenge because “of the

presence of multiple procedural safeguards designed to make

sure that ‘the obligation to repay the State accrues only to

those who later acquire the means to do so without hardship’ ”

(quoting Fuller, 417 US at 46)). In short, the text and context

of ORS 161.665(5) demonstrate that it is intended to ensure

that “costs” are laid only upon the shoulders of those who can

afford to pay them without “manifest hardship.”

That purpose is borne out by the meager legislative

history of which we are aware. The statute originated as

Cite as 336 Or App 30 (2024) 41

part of Oregon’s 1971 Revised Criminal Code. According to

the commentary of the Criminal Law Revision Commission,

the provision now codified as ORS 161.665(5) “allows

the defendant, if his situation deserves it, to apply to the

court for remission of the payment of costs.” Commentary

to Criminal Law Revision Commission Proposed Oregon

Criminal Code, Final Draft and Report § 80, 77 (July 1970).

Recognizing the purpose of subsection (5) answers

only part of the question, however. It remains to deter-

mine the proper analysis required for addressing a petition

brought under the subsection.

From the plain text of the subsection, we understand

that it contemplates a three-step analysis. First, the court

must determine that the defendant is not “in contumacious

default.” ORS 161.665(5). Second, the court must determine

that the “payment of the amount due will impose manifest

hardship on the defendant or the immediate family of the

defendant.” Id. Third, if those two requirements are met,

the court must exercise its discretion whether to “remit[ ]

all or part of the amount due” or to modify the method of

payment. Id. The first two steps require the court to make

factual findings, whereas the third step involves an exercise

of discretion.

At the first step of the analysis, we construe “contu-

macious” according to its plain and ordinary meaning. See

Dowell v. Oregon Mutual Ins. Co., 361 Or 62, 69, 388 P3d

1050 (2017) (“When the legislature has not defined a word

or a phrase, we assume, at least initially, that the word

or phrase has its plain, natural, and ordinary meaning.”

(Internal quotation marks omitted.)). The common meaning

of “contumacious” is “perverse in resisting authority : stub-

bornly disobedient : rebellious, irreconcilable.” Webster’s

Third New Int’l Dictionary 497 (unabridged ed 2002); accord

Black’s Law Dictionary 419 (12th ed 2024) (defining “contu-

macy” as “[c]ontempt of court; the refusal of a person to fol-

low a court’s order or direction” and “contumacious conduct”

as “[a] willful disobedience of a court order”). Also, it bears

noting that the statute uses the present tense, i.e., “is not

in contumacious default.” We therefore understand that, as

a prerequisite to obtaining relief under subsection (5), the

42 State v. Dunham

defendant must show that they are not presently in default of

payment due to their own willful disobedience of the court’s

order to pay costs.

At the second step of the analysis, the defendant

must demonstrate that paying the costs will “impose mani-

fest hardship” on them or their immediate family. The term

“manifest” refers to something that is “capable of being easily

understood or recognized at once by the mind : not obscure :

obvious,” Webster’s at 1375, while “hardship” refers to “a par-

ticular instance or type of suffering or privation,” id. at 1033.

Thus, based on the common meaning of the words, the rele-

vant factual inquiry is whether the defendant’s payment of

the costs would lead to the obvious suffering or privation of

the defendant or their immediate family.

Beyond looking to the dictionary, however, it is per-

haps more helpful to understand the “manifest hardship”

inquiry in the context of the overarching purpose of sub-

sections (4) and (5), which is, again, to ensure that costs

are exacted only from those able to afford them. Under

subsection (4), to lawfully impose costs in the first place,

the sentencing court must have evidence before it that the

defendant is or may be able to pay them. We understand the

second step of the analysis under subsection (5) to require

a similar inquiry, except that the burden is on the defen-

dant to establish the inability to pay costs without manifest

hardship. In other words, subsection (4) requires evidence

that a defendant is or may be able to pay the costs in the

foreseeable future, whereas subsection (5) requires evidence

that the defendant is unable to pay them without manifest

hardship.

Turning to the third step of the analysis, if the court

finds that the defendant is not in contumacious default and

that paying the costs will pose a manifest hardship, then

the last step requires the exercise of discretion, as subsec-

tion (5) provides only that the court “may” grant the defen-

dant’s request. Given the context of ORS 161.665 as a whole,

however, the exercise of that discretion should be tied to the

underlying purposes of the statute. As we have explained,

the statute exists to allow the state to recoup costs from

defendants who can afford to pay them—while trying to

Cite as 336 Or App 30 (2024) 43

minimize the risk that costs will be imposed on people who

cannot realistically pay them and then providing a post-

sentencing procedure to capture situations where it becomes

clear that the person cannot afford to pay them, or can

no longer afford to pay them, without manifest hardship.

Accordingly, in deciding whether and how to exercise discre-

tion, the trial court should consider factors such as whether

the defendant can pay a portion of the costs, whether there

is some likelihood that the defendant’s financial situation

will change in the near future, whether there are readily

available employment opportunities that the defendant has

not pursued, whether the defendant could avoid manifest

hardship with an alternative payment schedule, and the

like.

Having described the necessary three-step analysis

under ORS 161.665, we note that different standards of

review apply to the denial of a motion under ORS 161.665

depending on which step the trial court found to be dis-

positive. The first two steps of the analysis involve factual

findings, which are reviewed for evidentiary support in the

record, except that any attendant statutory construction

issues (such as the meaning of “contumacious default” or

“manifest hardship”) would be reviewed for errors of law.

State v. Cazares-Mendez, 350 Or 491, 510, 256 P3d 104

(2011). The third step involves a discretionary decision that

is reviewed for abuse of discretion, i.e., to determine whether

the court’s decision is within the legally permissible range

of choices, taking into account the factors relevant to that

decision as just described. See State v. Ramoz, 367 Or 670,

703, 483 P3d 615 (2021) (describing abuse-of-discretion

standard).

In this case, based on its remarks when ruling, the

trial court denied the motion because it was concerned that

defendant had “neglected” his financial obligations in the

past, perhaps not wanting to reward defendant for not pay-

ing the costs earlier when he might have been in a better

position to do so. It is unclear to us whether the court viewed

the duration of nonpayment as relevant to the “contuma-

cious default” finding, the “manifest hardship” finding, or

the ultimate exercise of discretion. Any of the three seems

44 State v. Dunham

possible, depending on what the court had in mind. Given

that reality, it would be improper for us to simply presume

the necessary factual findings and go directly to the last

step of the analysis, limiting our review to abuse of dis-

cretion.6 See Pereida-Alba v. Coursey, 356 Or 654, 671, 342

P3d 70 (2015) (in the absence of express factual findings,

we will normally presume that the trial court made implicit

findings consistent with its ultimate decision, but “the pre-

sumption does not apply” unless the finding was necessary

to the court’s ultimate conclusion). Instead, under the cir-

cumstances, the appropriate course is to vacate the orders

and remand for the trial court to reconsider and explain its

ruling on costs within the three-step framework articulated

herein.

B. Waiver of Fines under ORS 161.685(5)

We next consider the trial court’s denial of defen-

dant’s request to waive fines under ORS 161.685(5). ORS

161.685(1) authorizes a court to reduce or waive a past-due

fine, or to extend the time for payment of a past-due fine, if

the court determines that the nonpayment is not an act of

contempt:

“If it appears to the satisfaction of the court that the

default in the payment of a fine or restitution is not con-

tempt, the court may enter an order allowing the defendant

additional time for payment, reducing the amount of the

payment or installments due on the payment, or revoking

the fine or order of restitution in whole or in part.”

ORS 161.685(5).

As a preliminary matter, we note that, unlike with

costs (which require a finding that the defendant is or may

be able to pay), a court imposing a fine on a criminal defen-

dant need only “consider” the financial burden of the fine on

the defendant:

“In determining whether to impose a fine and its

amount, the court shall consider:

6

We do presume, as do the parties, that the court viewed defendant’s state-

ments to the court at the hearing as evidence from which it could make findings,

even though defendant was not sworn in.

Cite as 336 Or App 30 (2024) 45

“(1) The financial resources of the defendant and the

burden that payment of a fine will impose, with due regard

to the other obligations of the defendant; and

“(2) The ability of the defendant to pay a fine on an

installment basis or on other conditions to be fixed by the

court.”

ORS 161.645. Consequently, “[t]he question of whether to

impose a fine, and the amount to impose, is largely within

the trial court’s discretion and to be determined based on

the factors ordinarily appropriate in sentencing.” State v.

Moreno-Hernandez, 365 Or 175, 181, 442 P3d 1092 (2019).

The broader discretion to impose fines under ORS

161.645 is mirrored in the broader discretion whether to

grant relief from fines under ORS 161.685(5). Unlike the

three-step analysis for cost waiver under ORS 161.665(5),

ORS 161.685(5) contemplates a two-step analysis for fine

waiver. First, the court must decide whether it is satisfied

that the “the default in the payment of [the] fine * * * is not

contempt,” i.e., that the defendant’s failure to pay the fine is

not a contemptuous act. ORS 161.685(5). Second, if so, then

“the court may enter an order allowing the defendant addi-

tional time for payment, reducing the amount of the payment

or installments due on the payment, or revoking the fine or

order of restitution in whole or in part.” Nothing in the text,

context, or legislative history of which we are aware places

any clear limits on the exercise of that discretion. Beyond

keeping in mind the general goals of criminal sentencing,

see Or Const, Art I, § 15 (“Laws for the punishment of crime

shall be founded on these principles: protection of society,

personal responsibility, accountability for one’s actions and

reformation.”), a trial court has broad discretion in deciding

whether to grant relief from fines under ORS 161.685(5).

Here, defendant has not identified any way in which

the trial court abused its broad discretion with respect to

waiver of fines.

Amici make a compelling argument that criminal

fines disproportionately affect indigent defendants, often

turning what is supposed to be a “temporary punishment

into a lifelong status.” Given the barrier that criminal history

46 State v. Dunham

can pose to gainful employment, the fact that payment of all

financial obligations owed to the court is a prerequisite for

expungement of a criminal conviction adds to the difficult

reality. See ORS 137.225(1)(a) (requiring, in order to be eligi-

ble for expungement, that a person “has fully complied with

and performed the sentence of the court”). Amici describe

indigent defendants as facing a Catch-22: They cannot

afford to pay off their debt because they cannot find employ-

ment due to their criminal record, and they cannot expunge

their criminal record because of their inability to pay off

their debt. No matter how compelling those arguments may

be, however, they are policy arguments, and policy decisions

are the purview of the legislature, not the courts. We can

only construe and apply the statutes as currently written

and, as currently written, ORS 161.685(5) gives trial courts

broad discretion whether to grant an indigent defendant

relief from previously imposed fines.

IV. CONSTITUTIONAL ARGUMENTS

Lastly, we consider defendant’s constitutional argu-

ments. Defendant contends that denying his motions vio-

lated the excessive fines clauses of the state and federal

constitutions. See Or Const, Art I, § 16 (“Excessive bail

shall not be required, nor excessive fines imposed.”); US

Const, Amend VIII (“Excessive bail shall not be required,

nor excessive fines imposed, nor cruel and unusual punish-

ments inflicted.”). Like defendant, we are unaware of any

court having ever addressed whether a lawfully imposed

fine can become unconstitutional with the passage of time

due to a post-sentencing change in the defendant’s financial

circumstances. Defendant’s argument therefore presents

a question of first impression under both state and federal

law.

Although defendant argues at length that the fines

that he owes are excessive in light of his current financial

circumstances, he has not developed any argument as to how

or why the excessive fines clauses would apply at any time

other than sentencing. See Or Const, Art I, § 16 (“Excessive

bail shall not be required, nor excessive fines imposed.”

(Emphasis added.)); US Const, Amend VIII (“Excessive

Cite as 336 Or App 30 (2024) 47

bail shall not be required, nor excessive fines imposed * * *.”

(Emphasis added.)).

Under Oregon law, when construing an original

constitutional provision, “we examine the text of the provi-

sion in its context, the historical circumstances surrounding

its adoption, and the case law that has construed it.” State v.

Autele, 372 Or 489, 496, 551 P3d 376 (2024). “Our goal is ‘to

identify, in light of the meaning understood by the framers,

relevant underlying principles that may inform our appli-

cation of the constitutional text to modern circumstances.’ ”

Id. (quoting State v. Davis, 350 Or 440, 446, 256 P3d 1075

(2011)). As to the federal constitution, “[i]n the absence of

controlling Supreme Court precedent, we must determine,

as best we can, how that Court would rule if presented with

the question before us.” State v. Williams, 357 Or 1, 18, 346

P3d 455 (2015). We understand that task as no less arduous

than that required in construing our own constitution.

In asking us to hold for the first time that a lawfully

imposed fine can be rendered unconstitutional by a later

change in the defendant’s circumstances, defendant has

failed to establish—in keeping with the necessary method-

ologies described above—that there is a well-founded basis

for doing so. We decline to develop defendant’s argument for

him. See Johnson v. Monsanto Co., 333 Or App 678, 700, 554

P3d 290 (2024) (declining to undertake a necessary legal

analysis where the appellant had “not undertaken that

analysis in its brief on appeal”).

Vacated and remanded.