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State v. Brown

Court of Appeals of Oregon

July 15, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
TENIKIA ELIZABETH BROWN, Defendant-Appellant

Submitted May 29, 2015

Washington County Circuit Court. C122907CR. Rick Knapp, Judge.

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

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael A. Casper, Senior Assistant Attorney General, filed the brief for respondent.

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

OPINION

Page 130

[272 Or.App. 322] GARRETT, J.

Defendant appeals a judgment of conviction and assigns error solely to the portion of the judgment tat requires her to pay $600 for court-appointed attorney fees. Although defendant did not object at sentencing, she argues on appeal that the trial court plainly erred by imposing those attorney fees because the record contains no evidence defendant " is or may be able to pay" them. The state concedes that the record contains no such evidence and that " the award was plainly erroneous." [1] Nevertheless, the state argues that " the trial court's error is not properly subject to review because defendant invited it." For the reasons that follow, we conclude that defendant did not invite the error. Furthermore, we conclude that the unpreserved error in this case warrants correction. Accordingly, we reverse the portion of the judgment that imposed attorney fees.

The facts relevant to this appeal are entirely procedural. Defendant was convicted of one count of identity theft, ORS 165.800. The court entered a judgment of conviction that sentenced defendant to, among other things, a prison term of 33 months and an assessment of $600 to help pay for the cost of her court-appointed attorney. At sentencing, the following colloquy occurred:

" [THE COURT: Defense attorney], were you retained--no, you were appointed on this case?
" [DEFENSE ATTORNEY]: I'm appointed.
" THE COURT: So I'm sorry. There has to be attorney fees that's--that's--both of these are C felonies. But you're [272 Or.App. 323] not on my schedule, so do you have an idea, how much your attorney fees are going to be?
" [DEFENSE ATTORNEY]: I don't. I know all my cases are kind of muddled together. On the probation violation, not much at all. ...

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