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State v. Nickerson

Court of Appeals of Oregon

July 1, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
NATHAN LEE NICKERSON, Defendant-Appellant

Submitted May 29, 2015

131832. Lincoln County Circuit Court. Sheryl Bachart, Judge.

Portion of judgment requiring defendant to pay attorney fees reversed and remanded; otherwise affirmed.

Peter Gartlan, Chief Defender, and Laura E. Coffin, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

OPINION

Page 759

[272 Or.App. 156] GARRETT, J.

Defendant appeals a judgment of conviction for one count of second-degree assault, ORS 163.175, and one count of tampering with physical evidence, ORS 162.295. We affirm those convictions without written discussion and write only to address defendant's second assignment of error, which challenges the trial court's imposition of court-appointed attorney fees. Defendant concedes that this assignment of error is unpreserved but requests that we review it as plain error. We conclude that the trial court plainly erred and exercise our discretion to correct the error. We therefore reverse and remand.

The trial court sentenced defendant to 70 months in prison and imposed a court-appointed attorney fee in the amount of $1,500. During sentencing proceedings, defendant disputed the state's assertion that he had broken his hand while punching someone during the assault and instead stated that the injury had occurred " at work." On appeal, defendant raises an unpreserved challenge to the imposition of the attorney fee on the ground that " [t]he record contains no evidence of defendant's ability to pay upon which to base a finding." An unpreserved error is reviewable as " plain error" if " (1) the error is one of law; (2) the legal point is obvious--that is, not reasonably in dispute; and (3) to reach the error, we need not go outside the record or choose between competing inferences to find it." State v. Fernaays, 263 Or.App. 407, 413, 328 P.3d 792, rev den, 356 Or. 397, 337 P.3d 127 (2014) (internal quotation marks and brackets omitted); see also ORAP 5.45(1). If we conclude that the asserted error is plain, we must decide whether to exercise our discretion to correct the error. Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991). In making that decision, we consider, among other things,

" the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court's attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way[.]"

Id. at 382 n 6.

[272 Or.App. 157] In this case, the alleged error--that, in order to impose court-appointed attorney fees under ORS 151.505 and ORS 161.665, there ...


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