Submitted March 30, 2015.
C122744CR, C11435CR. Washington County Circuit
Court. Rick Knapp, Judge.
Peter Gartlan, Chief
Defender, and Ingrid A. MacFarlane, Senior Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum,
Attorney General, Anna M. Joyce, Solicitor General, and Greg Rios, Assistant
Attorney General, filed the brief for respondent.
Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[271 Or.App. 748] HADLOCK, J.
Defendant appeals judgments in two criminal cases. In one of those cases, Washington County C122744CR, defendant was convicted of attempted first-degree robbery, attempted second-degree robbery, unlawful use of a weapon (UUW), unlawful delivery of methamphetamine, and unlawful possession of methamphetamine. In the second case, Washington County C111435CR, defendant's probation on other, earlier convictions was revoked based on his new convictions in case C122744CR. In this consolidated appeal, defendant challenges his conviction for attempted second-degree robbery in case C122744CR, making an unpreserved argument that the trial court should have entered a judgment of acquittal on that charge based on the reasoning in State v. Rennells, 213 Or.App. 423, 162 P.3d 1006 (2007). Defendant also argues that the trial court erred by not merging the guilty verdicts for UUW and attempted first-degree robbery into a single conviction. Finally, defendant argues that the trial court erred by ordering him to pay attorney fees in the amount of $1100 and $230; that was an error, defendant contends, because the record includes no evidence of his ability to pay fees.
We reject without written discussion defendant's argument that the trial court plainly erred, under Rennells, by not entering a judgment of acquittal on the charge of attempted second-degree robbery. Furthermore, reviewing for legal error, State v. Burris, 270 Or.App. 512, 514, 348 P.3d 338 (2015), we reject defendant's merger argument for the reasons set out below. However, we agree with defendant that the trial court plainly erred when it ordered him to pay attorney fees, and we exercise our discretion to correct that error. Accordingly, we reverse the portions of the judgments [271 Or.App. 749] that require defendant to pay attorney fees, and we other-wise affirm.
We summarize the pertinent facts in the light most favorable to the state. State v. Gray, 240 Or.App. 599, 601, 249 P.3d 544, rev den, 350 Or. 574, 258 P.3d 1240 (2011). Defendant and another man, Forest Aleg, drove to an apartment complex to confront a person whom defendant believed owed him money. Two knives were in the car that the men drove. While they waited to confront the purported debtor, defendant and Aleg saw another man, Griffin, walking through the parking lot, carrying a large backpack. Unbeknownst to them, Griffin had a handgun in the backpack, for which he had a concealed weapons permit. Aleg told defendant that he wanted to see what was in Griffin's backpack. Aleg also told defendant to get the knives out of the car, which defendant did, and the two men started following Griffin. At some point, Aleg also said to defendant, " you got my back."
After Griffin noticed that he was being followed, he retrieved his gun from his backpack and put it in his coat pocket. At some point, defendant and Aleg went in different directions; as they parted ways, each man began talking on a cell phone. Aleg kept following Griffin, who repeatedly, but unsuccessfully, told Aleg to stop following him. At some point, Griffin called 9-1-1, but the dispatcher did not deem the call to be urgent, and no officer responded immediately. Griffin stopped walking after a time because he was approaching a particularly dark area and was concerned that defendant was going to approach him from a different direction, to trap Griffin between defendant and Aleg. While Griffin was still on the phone with the 9-1-1 dispatcher, he saw Aleg emerge from shadows. Griffin took his gun out of his pocket and pointed it at Aleg's feet. Aleg then started walking very quickly toward Griffin, who said, " Get away from me." Aleg kept coming, and Griffin fired the gun, but missed. Aleg kept walking toward Griffin, threatening to kill him or to cut his heart out. Griffin
repeatedly yelled at Aleg to get away from him, and shot Aleg twice. Aleg ran away, but died by some nearby bushes. The 9-1-1 dispatcher heard that exchange and directed officers to the scene.
[271 Or.App. 750] About one minute after the shooting, a deputy sheriff spotted defendant nearby. Defendant told the deputy that he had been walking with a friend named Forest, whose last name he did not know. Defendant said that he was unfamiliar with the area and had become separated from Forest and gotten lost. The next morning, two knives were found near where Aleg had died. Testing revealed the presence of defendant's DNA on one of those knives. After later questioning by police, defendant eventually acknowledged that he had retrieved the knives from the car when he and Aleg began following Griffin. Defendant told an officer that he had tried to give the knives to Aleg, who would not take them, so defendant tossed them into a ditch at a particular location. That location is not where the knives were found; rather, they were found close to Aleg's body.
Defendant was charged in case number C122744CR with five crimes: attempted first-degree robbery (ORS 164.415), attempted second-degree robbery (ORS 164.405), UUW (ORS 166.220), unlawful delivery of methamphetamine (ORS 475.890), and unlawful possession of methamphetamine (ORS 475.894). The jury convicted defendant of all charges.
At the beginning of the sentencing hearing, defendant argued that " unlawful use of a weapon merges with * * * attempted robbery in the first degree." In support of that argument, defendant asserted that the elements of UUW " would be encompassed within the attempted robbery in the first degree statute." The state responded that the two crimes did not merge because " both have separate elements that the other one does not contain[.]" The trial court agreed with the state and, therefore, denied defendant's request for merger. The court sentenced defendant to prison and post-prison supervision on each of the convictions, resulting in a total period of incarceration of 48 months. The court also ordered defendant to pay fines and $1,100 in court-appointed attorney fees. Based on the new convictions in case number C122744CR, the court revoked defendant's probation in case number C111435CR; in conjunction with that probation revocation, the court ordered defendant to pay $230 in court-appointed attorney fees.
[271 Or.App. 751] On appeal, defendant renews his argument that the guilty verdicts for attempted first-degree robbery and unlawful use of a weapon should have merged under ORS 161.067(1), which provides:
" When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as ...