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State v. Garcia

Court of Appeals of Oregon

July 1, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
ISAURO GARCIA, Defendant-Appellant

Submitted May 19, 2015.

C131572CR. Washington County Circuit Court. Janelle F. Wipper, Judge.

Peter Gartlan, Chief Defender, and Lindsey K. Detweiler, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Peenesh H. Shah, Assistant Attorney General, filed the brief for respondent.

Before Sercombe, Presiding Judge, and Tookey, Judge, and Edmonds, Senior Judge.

OPINION

[272 Or.App. 180] PER CURIAM

Defendant appeals a judgment of conviction for second-degree robbery, ORS 164.405(1)(b). He was sentenced to 70 months in prison and ordered to pay, among other amounts, $1,800 in court-appointed attorney fees. We reject without published discussion defendant's first assignment of error, in which he contends that the trial court erred in denying his motion for judgment of acquittal. In his second assignment, defendant contends that the trial court plainly erred in ordering him to pay $1,800 in attorney fees without determining his ability to pay. The state concedes that the trial court

Page 1255

plainly erred by imposing attorney fees " on a record that was silent regarding the defendant's ability to pay them[.]" We agree. See State v. Chavez, 263 Or.App. 187, 326 P.3d 629, rev den, 356 Or. 163, 334 P.3d 971 (2014) (the imposition of court-appointed attorney fees is plain error where the record is silent as to the defendant's ability to pay those fees); State v. Coverstone, 260 Or.App. 714, 320 P.3d 670 (2014) (same). Furthermore, for the reasons articulated in Coverstone, we conclude that it is appropriate to exercise our discretion to correct the plain error. 260 Or.App. at 716-17; see also State v. Fleet, 270 Or.App. 246, 347 P.3d 345 (2015) (exercising discretion to correct plain error under similar circumstances). Accordingly, we accept the state's concession and reverse the portion of the judgment relating to attorney fees.

Portion of judgment requiring defendant to pay court-appointed attorney fees reversed; otherwise affirmed.


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