Submitted December 19, 2018.
County Circuit Court 17CR12766 Debra K. Vogt, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Sarah De La Cruz, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Michael A. Casper, Assistant Attorney General,
fled the brief for respondent.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Or.App. 275] PER CURIAM.
appeals a judgment of conviction for driving under the
influence of intoxicants (DUII), a Class C felony, ORS
813.010(5). Among other terms, defendant's sentence for
his DUII conviction included 60 months' imprisonment and
an order to pay a "Fine-DUII" of $2, 255. Defendant
contends on appeal that the trial court erroneously believed
that it was required to impose a $2, 000 DUII fine and $255
conviction fee when, in fact, it had discretion to waive both
amounts. Defendant concedes that he did not preserve his
claims of error but asks us to review them for plain error.
The state concedes that the trial court plainly erred in
failing to exercise its discretion in imposing the $255
conviction fee. We agree and remand for resentencing, but
ORS 813.020, a court is generally required to order the
defendant to pay a $255 DUII conviction fee. However, the
court also has discretion to "waive all or part of the
fee" in cases, like this one, "involving indigent
defendants." ORS 813.030.
it appears from the record that the court erroneously
believed that it was required to impose an
"assessment" fee under the DUII statute. Because
the court failed to exercise its discretion whether to impose
the $255 DUII conviction fee, we conclude that the court
erred. State v. Larson, 289 Or.App. 60, 62, 408 P.3d
273 (2017) (court errs when it fails to consider under ORS
813.030 whether to require an indigent defendant to pay $255
DUII conviction fee).
we address whether it is appropriate to exercise our
discretion to correct the error. See Ailes v. Portland
Meadows, Inc., 312 Or. 376, 382-83, 823 P.2d 956 (1991)
(setting out factors to consider in the exercise of our
discretion). Here, the gravity of the error and the ends of
justice weigh [298 Or.App. 276] in favor of exercising our
discretion; $255 is a large sum of money for an indigent
defendant who will be incarcerated for 60 months. See
State v. Williams, 271 Or.App. 693, 694-95, 352 P.3d
742, rev den, 358 Or. 249 (2015) (concluding that,
for purposes of plain-error review, an unlawfully imposed
$500 attorney-fee award was "not so small that it would
not present a significant burden to a person without
means"). We also see no strategic benefit to defendant
from intentionally failing to object to the court's
imposition of a fee when the court believed it was mandatory
and not discretionary. Thus, we conclude that it is
appropriate for us to exercise our discretion to correct the
error. See State v. Sosa, 224 Or.App. 658, 663-64,
199 P.3d 346 (2008) (considering defendant's role in
imposition of sentence).
for resentencing; otherwise affirmed.
 Because the case must be remanded for
resentencing, we decline to address defendant's other
unpreserved sentencing-related assignment of error under the
strictures of plain-error review. On remand, defendant will
have an opportunity to address the issue raised by the
assignment. See, e.g., State v. Jay, 251 Or.App.
752, 753 n 1, 284 P.3d 597 (2012), rev den, 353 Or.
209 (2013) (similarly declining to reach unpreserved