Argued and Submitted October 29, 2014.
Washington County Circuit Court. C130526CR. Thomas W. Kohl, Judge.
Kyle Krohn, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Gregory A. Rios, Assistant Attorney General, argued the cause for respondent. On the briefs were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Leigh A. Salmon, Assistant Attorney General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[267 Or.App. 317] PER CURIAM
Defendant appeals a judgment of conviction, after a bench trial, for unlawful delivery of methamphetamine, ORS 475.890, and unlawful possession of methamphetamine, ORS 475.894, both as commercial drug offenses. He was sentenced to 58 months in prison and ordered to pay, among other amounts, $1,100 in court-appointed attorney fees. He first asserts that the trial court erred in admitting evidence of his nonverbal statement to police-- viz., nodding his head in response to an officer's question--after he had been Mirandized. That claim of error is unpreserved, and it does not constitute error apparent on the record. See ORAP 5.45(1) (authorizing appellate court to consider unpreserved error of law apparent on the record); State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990) (describing requirements for
plain error review). Accordingly, we reject it without further discussion.
Defendant also contends that the trial court plainly erred in ordering him to pay $1,100 in court-appointed attorney fees without considering his ability to pay. The state concedes the error, and we agree. See, e.g., State v. Chavez, 263 Or.App. 187, 326 P.3d 629, rev den, 356 Or. 163, 334 P.3d 971 (2014) (holding that the imposition of court-appointed attorney fees is plain error where the record is silent as to the defendant's ability to pay the fees ordered); State v. Coverstone, 260 Or.App. 714, 320 P.3d 670 (2014) (same). We also conclude, given the amount of the fees ordered, the length of defendant's prison term, and the lack of evidence in the record indicating that defendant would be able to pay the fees, that it is appropriate for us to exercise our discretion to correct the error in this case. See, e.g., State v. Callentano, 263 Or.App. 190, 191, 326 P.3d 630 (2014) (exercising discretion to correct error under similar circumstances); Chavez, 263 Or.App. at 188 (same). Cf. State v. Baco, 262 Or.App. 169, 171, 324 P.3d 491, rev den, 355 Or. 751, 331 P.3d 1010 (2014) (declining to exercise plain-error review where the court imposed $510 in attorney fees, the defendant's probationary ...