Ailes v. Portland Meadows, Inc. , 312 Or. 376, 382 n 6, 823 P.2d 956 (1991). The Supreme Court's recent decision in State v. Morales , 367 Or. 222, 476 P.3d 954 (2020), is dispositive on whether the claimed error in this case is plain. See State v. Jury , 185 Or. App. 132, 136, 57 P.3d 970 (2002), rev. den. , 335 Or. 504, 72 P.3d 636 (2003) (explaining that we determine error based on the law as it existed at the time of the appellate decision, not at the time of the disputed ruling, and acknowledging the "ostensibly incongruous results" by that approach).

Id . Evidence of an ability to pay " ‘may consist of information about the defendant's financial resources, educational background, work history, and anticipated future employment or educational status, to the extent there is a nonspeculative basis for assessing that future status.’ " State v. Morales , 367 Or. 222, 232, 476 P.3d 954 (2020) (quoting State v. Mendoza , 286 Or. App. 548, 550-51, 401 P.3d 288 (2017) ). It is the state that bears the burden of proving that a defendant is or may be able to pay attorney fees.

(A163483)(303 Or App 541) Petition for review allowed; decision of Court of Appeals vacated, and case remanded to Court of Appeals for reconsideration in light of State v. Morales, 367 Or 222, 476 P.3d 954 (2020) PETITION FOR REVIEW ALLOWED

[12] When a third party posts the security, then we do not presume that the funds belong to the defendant such that they can be used to pay court-appointed attorney fees or to determine a defendant’s ability to pay. State v. Morales, 367 Or. 222, 231-32, 476 P.3d 954 (2020); see also State v. Deanda, 331 Or App 217, 221-23, 545 P.3d 1256 (2024) (it was a plain error to impose attorney fees where there were no findings regarding the defendant’s ability to pay the fees 696apart from the availability of a security deposit posted by the defendant’s father). But here the record indicates that defendant posted the security, not a third party.

The Supreme Court's decision in State v. Morales, renders the error with respect to the attorney fee plain. 367 Or. 222, 231, 476 P.3d 954 (2020) (explaining that the longstanding presumption that any funds deposited as bail or security by a third party were presumed to belong to the defendant was wrong).

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge. DeHOOG, J. This case is before us on remand for reconsideration in light of State v. Morales , 367 Or. 222, 476 P.3d 954 (2020), in which the Supreme Court abrogated, in part, our case law governing the determination that a criminal defendant has the ability to pay court-appointed attorney fees. In our prior decision, State v. Laune , 303 Or. App. 541, 464 P.3d 459 (2020) ( Laune I ), we did not reach the merits of defendant's argument that the trial court had erred in considering funds that his sister had posted as security on his behalf, because we concluded that defendant had not preserved the alleged error and had not established that the trial court had plainly erred.

Defendant, who pleaded no contest to driving under the influence of intoxicants (DUII), appeals his judgment of conviction, arguing that the trial court plainly erred in imposing $550 in attorney fees without considering his ability to pay them and in imposing a $255 DUII conviction fee without considering whether to waive it. In particular, he focuses on the fact that the trial court indicated at sentencing that his bail would be used to satisfy those financial obligations; he argued that use of bail for those financial obligations was impermissible in light of State v. Morales , 367 Or. 222, 235, 476 P.3d 954 (2020), in which the Supreme Court recently held that a trial court had erred in concluding that a defendant had the ability to pay attorney fees from bail that had been posted by a third party. Morales is not controlling here.