Submitted November 7, 2014.
Marion County Circuit Court. 13C42340. Dale Penn, Judge.
Peter Gartlan, Chief Defender, and Alice S. Newlin, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. On the reply brief were Peter Gartlan, Chief Defender, and Morgen E. Daniels, Deputy Public Defender.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jamie K. Contreras, Assistant Attorney-in-Charge, filed the brief for respondent.
Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.
[267 Or.App. 777] LAGESEN, J.
Defendant appeals a judgment of conviction, asserting only an unpreserved assignment of error regarding the trial court's award of attorney fees for defendant's court-appointed lawyer under ORS 151.505(3) and ORS 161.665(4). Defendant contends that the award must be set aside in its entirety because the record contains no evidence that defendant " is or may be able to pay" any amount of attorney fees. 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." ). The state concedes that the trial court erred in awarding attorney fees and acknowledges that the record contains no evidence regarding defendant's ability to pay a fee award but argues that we should remand to the trial court with instructions to enter a judgment for a reduced fee award based on arguments that defense counsel made at sentencing. We decline to accept the state's concession. See State v. R. L. W., 267 Or.App.
725, ___, 341 P.3d 845 (Dec 24, 2014) (explaining that we are not bound by
concessions of error). Based upon our independent review of the record, we conclude that any error by the trial court was invited and, in any event, is not plain. Accordingly, we affirm.
Defendant pleaded guilty to, and was convicted of, three counts of encouraging child sexual abuse in the first degree, ORS 163.684. The trial court sentenced defendant to a stipulated sentence of 225 months in prison and 76 months of post-prison supervision. At sentencing, the prosecutor noted that she had already " filled out the judgments for the case" and had " gone ahead and put down on the monetary awards attorney fee, Judge, but certainly we can modify those depending on what you decide, and any other monetary awards." As filled out by the prosecutor, the judgment indicated a total attorney fee award of $4,800 ($1,600 in fees per conviction). In response to the requested award of fees, defense counsel argued that a reduced amount of " perhaps * * *one-third" would be appropriate:
[267 Or.App. 778] " [DEFENSE COUNSEL]: The one thing I forgot to mention, Your Honor, is attorney's fees are optional based on the client's ability to pay, and so the Court might consider, rather than having him pay the full amount of attorney's fees, perhaps reducing it to one-third, if the Court thinks that's appropriate, just because he'll obviously be in prison and it would be very hard for him to pay the full amount.
" THE COURT: Okay. Normally, my process is that when it is anticipated there would be post-prison supervision, I would enter a judgment for the attorney's fees and then there would need to be a finding by Department of Corrections at release about your ability to pay and setting up a payment schedule at that time. So I would authorize attorney's fees at this point, keeping in mind that your future ability to pay will really set the monthly payments and whether or not that's possible to collect.
" So I'm going to enter the attorney's fees now, but that will be a later decision by Department ...