Opinion
C140629CR A157475.
05-11-2016
STATE of Oregon, Plaintiff–Respondent, v. Bob Dean FORNEY, Defendant–Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Debra C. Maryanov, Assistant Attorney General, filed the brief for respondent.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Debra C. Maryanov, Assistant Attorney General, filed the brief for respondent.
Before SERCOMBE, Presiding Judge, and TOOKEY, Judge, and DeHOOG, Judge.
Opinion
PER CURIAM. Defendant appeals a judgment of conviction for unlawful delivery of methamphetamine, ORS 475.890, and unlawful possession of methamphetamine, ORS 475.894. He was sentenced to 36 months in prison and ordered to pay, among other amounts, $936 in court-appointed attorney fees. On appeal, defendant raises two assignments of error. We reject his first assignment without discussion, and write only to address his second assignment, in which he contends that the trial court plainly erred in ordering him to pay court-appointed attorney fees in the absence of evidence that he is or may be able to pay those fees. See ORS 151.505(3) (the court may not require a person to pay costs, including court-appointed attorney fees, “unless the person is or may be able to pay the costs”); ORS 161.665(4) (same). The state concedes that the trial court plainly erred by imposing $936 in attorney fees without evidence of defendant's ability to pay. We agree. See State v. Chavez, 263 Or.App. 187, 188, 326 P.3d 629, rev. den., 356 Or. 163, 334 P.3d 971 (2014) (the imposition of court-appointed attorney fees is plain error where the record is silent as to the defendant's ability to pay those fees); State v. Coverstone, 260 Or.App. 714, 716, 320 P.3d 670 (2014) (same). Furthermore, for the reasons articulated in Coverstone, we conclude that it is appropriate to exercise our discretion to correct the plain error. In particular, the error is grave in light of the amount of fees ordered, the length of defendant's prison term, and the lack of evidence in the record that defendant is or may be able to pay the fees. See Coverstone, 260 Or.App. at 716–17, 320 P.3d 670 ; see also State v. Hunt, 271 Or.App. 347, 352–53, 350 P.3d 521 (2015) (exercising discretion to correct plain error under similar circumstances). Accordingly, we accept the state's concession, and we reverse that portion of the judgment.
Portion of judgment requiring defendant to pay attorney fees reversed; otherwise affirmed.