Submitted October 10, 2017
County Circuit Court CR1301855; Robert D. Herndon, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Kali Montague, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Timothy A. Sylwester, Assistant Attorney
General, fled the brief for respondent.
DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi,
was convicted of three counts of second-degree rape and
argues on appeal that the sentencing court plainly erred in
imposing consecutive sentences and $1, 600 in attorney fees.
Defendant's convictions arose out of three separate
criminal episodes. Each conviction was subject to a 75-month
mandatory minimum sentence. Defendant asked the court to
impose concurrent sentences. The court instead imposed
consecutive sentences, stating that it was required to do so
because the convictions arose out of separate criminal
episodes. The court also imposed $1, 600 in court-appointed
attorney fees. Held: The sentencing court plainly
erred when it imposed consecutive sentences based on a
mistaken belief that it was required by law to do so. The
court also plainly erred by imposing attorney fees without
evidence of defendant's ability to pay. The Court of
Appeals exercised its discretion to correct both of those
Or. 307] AOYAGI, J.
was convicted of three counts of second-degree rape. On
appeal, he assigns error to the sentencing court's
imposition of three consecutive 75-month prison sentences and
$1, 600 in attorney fees. In his first and second assignments
of error, defendant asserts that the sentencing court
committed plain error when it imposed consecutive sentences,
rather than concurrent sentences, based on a mistaken belief
that consecutive sentences were required. In his third
assignment of error, defendant asserts that the sentencing
court committed plain error when it imposed attorney fees
without evidence in the record that he is or may be able to
pay them. We agree with defendant on both issues.
relevant facts are undisputed. Defendant was convicted of
three counts of rape in the second degree, ORS 163.365. At
sentencing, the parties agreed that, under ORS 137.700(2),
defendant was subject to a mandatory minimum prison term of
75 months for each count. The state asked the court to impose
consecutive sentences for a total of 225 months in prison.
Defendant requested concurrent sentences for a total of 75
months in prison. The court ultimately imposed consecutive
"So for Count 1, for Rape in the Second Degree,
you'll be sentenced to the Ballot Measure 11 sentence of
75 months. * * *
"For Count 2, that being a second and separate
criminal episode, I'm required, as I see it, to impose a
consecutive sentence because that was a separate
occasion on which you had had an opportunity for
thoughtful reflection on the criminality of the first
sentence-or the first crime that you had committed and
despite that fact, committed a further forcible Rape in the
Second Degree here.
"And that will be also 75 months under Ballot Measure
11, under the same terms, and that sentence will be
consecutive to Count 1.
"For Count 3, that being a separate criminal
episode, separate and distinct from that found in Counts 1
and 2, I impose a further 75-month sentence ***. Again,
that being a separate criminal episode, one in which you had
the opportunity to-to think about the consequences of your
[290 Or. 308] two ...