Opinion
A171150
03-24-2021
STATE of Oregon, Plaintiff-Respondent, v. David PONCE, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, 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 Matthew Blythe, 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 Lagesen, Presiding Judge, and James, Judge, and Kamins, Judge.
PER CURIAM Defendant was convicted by unanimous jury verdict of first-degree theft. ORS 164.055. On appeal, he argues that the trial court erred in instructing the jury that it need not be unanimous, and that this constituted structural error entitling him to reversal of his conviction even though it was based on a unanimous verdict. Although defendant is correct that the instruction was erroneous, see Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), it does not constitute structural error entitling defendant to reversal of his conviction based on a unanimous verdict. See State v. Flores Ramos , 367 Or. 292, 319, 478 P.3d 515 (2020) (rejecting structural error argument and concluding jury instruction error was harmless); State v. Ciraulo , 367 Or. 350, 478 P.3d 502 (2020) (same). Defendant also argues that the trial court plainly erred in imposing $650 in attorney fees without considering his ability to pay. The state concedes that this constitutes plain error. We agree and accept the state's concession and, in light of the circumstances and gravity of the error, exercise our discretion to correct it. See generally State v. Harris , 293 Or. App. 110, 111, 426 P.3d 252 (2018) (correcting similar error).
Portion of judgment requiring defendant to pay attorney fees reversed; otherwise affirmed.