Submitted April 21, 2015
12C48120. Marion County Circuit Court. Lindsay R. Partridge, Judge.
Portion of judgment requiring defendant to pay court-appointed attorney fees reversed; otherwise affirmed.
Peter Gartlan, Chief Defender, and Robin A. Jones, 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 Timothy A. Sylwester, Senior Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[272 Or.App. 131] HADLOCK, J.
Defendant was convicted of several crimes, including unlawful use of a weapon with a firearm (UUW-firearm) and felon in possession of a firearm with a firearm (FIP-firearm). He raises two arguments on appeal. First, defendant makes an admittedly unpreserved argument that the trial court plainly erred by not merging the guilty verdicts for UUW-firearm and FIP-firearm into a single conviction. He relies on our opinion in State v. Flores, 259 Or.App. 141, 313 P.3d 378 (2013), rev den, 354 Or. 735, 320 P.3d 567 (2014), in which we determined that the trial court erred by not merging guilty verdicts for those same two crimes. For the reasons set out below, we reject that unpreserved argument. Defendant's second argument is also unpreserved; he contends that the trial court plainly erred by ordering him to pay fees for his court-appointed counsel without first considering his ability to pay. The state concedes the point, and we conclude that the concession is appropriate. Accordingly, we reverse the portion of the judgment requiring defendant to pay court-appointed attorney fees and we otherwise affirm.
The pertinent facts are, for these purposes, undisputed. After defendant shot four men in the parking lot of a bar, he was charged with ten crimes, including four counts of attempted aggravated murder with a firearm (ORS 161.405, ORS 163.095, ORS 161.610), one count of first-degree assault with a firearm (ORS 163.185, ORS 161.610), three counts of second-degree assault with a firearm (ORS 163.175, ORS 161.610), UUW-firearm (ORS 166.220, ORS 161.610), and FIP-firearm (ORS 166.270, ORS 161.610). The case went to trial, and the jury acquitted defendant of the attempted-aggravated-murder charges, but found him guilty of the remaining charged crimes, including UUW-firearm and FIP-firearm. Defendant did not argue to the trial court that the guilty verdicts for UUW-firearm and FIP-firearm should merge into a single conviction, and the court did not merge those verdicts. The court imposed sentences on the convictions that result in a total 250-month term of incarceration, plus post-prison supervision.
[272 Or.App. 132] On appeal, defendant first argues that the trial court erred by not merging the UUW-firearm and FIP-firearm verdicts. As noted, that argument is unpreserved. Accordingly, it can form a basis for reversal only if it establishes that the trial court committed error that is " plain," that is,
" if (1) the error is one of law, (2) the error is 'obvious, not reasonably in dispute,' and (3) the error 'appears on the face of the record,' so that we need not 'go outside the record to identify the error or choose between competing inferences, and the facts constituting the error are irrefutable.'"
State v. Corkill, 262 Or.App. 543, 551, 325 P.3d 796, rev den, 355 Or. 751, 331 P.3d 1010 (2014). In this case, the first " plain error" requirement is met, as the alleged error is one of law. And the state does not contend that any pertinent facts are in dispute or that we would need to go outside of the record to identify the error; nor do we perceive any such dispute or need to consider extra-record matters. Accordingly, the third " plain error" requirement is met. What remains at issue is the second ...