Opinion
A158851
07-20-2016
State of Oregon, Plaintiff–Respondent, v. Jackie Thompson Johnson, Defendant–Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, filed the brief for respondent.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.
PER CURIAMDefendant appeals a judgment of conviction entered after a bench trial in which the court found him guilty of unlawful possession of methamphetamine. In his only assignment of error, he contends that the trial court committed plain error when it ordered him to pay $634 in attorney fees when the record was silent as to whether he “is or may be able to pay” the costs of his defense. See ORS 151.505(3) (“The court may not require a person to pay costs under this section unless the person is or may be able to pay the costs.”); ORS 161.665(4) (“The court may not sentence a defendant to pay costs under this section unless the defendant is or may be able to pay them.”). Defendant failed to preserve that claim of error but urges us to review and correct the error as “an error of law apparent on the record.” ORAP 5.45(1) ; Ailes v. Portland Meadows, Inc. , 312 Or. 376, 382, 823 P.2d 956 (1991). The state concedes that the trial court committed plain error when it incorrectly imposed attorney fees when the record was silent as to defendant's ability to pay.
We accept the state's concession that the trial court plainly erred in imposing attorney fees of $634 on this record. See State v. Coverstone , 260 Or.App. 714, 716, 320 P.3d 670 (2014) (holding that a trial court commits plain error by imposing court-appointed attorney fees where the record is silent as to the defendant's ability to pay the fees ordered). Further, we conclude that, for reasons similar to those expressed in State v. Ramirez–Hernandez , 264 Or.App. 346, 349, 332 P.3d 338 (2014) (exercising discretion to correct erroneous imposition of $400 in court-appointed attorney fees because the amount was “substantial” in light of defendant's circumstances), it is appropriate to exercise our discretion to correct the error.
Portion of judgment requiring defendant to pay attorney fees reversed; otherwise affirmed.