Portions of judgments that imposed court-appointed… · Decided 2019-10-30
392
Submitted October 4; portions of judgments that imposed court-appointed
attorney fees in Case Nos. 16CR40902 and 13C47225 reversed, portion of
judgment requiring defendant to pay $25 probation violation fee in Case No.
13C47225 vacated, remanded for resentencing in Case No. 13C47225, otherwise
affirmed October 30, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
JESSICA LYNN PICKEREL,
Defendant-Appellant.
Marion County Circuit Court
13C47225, 16CR40902;
A165806 (Control), A165807
J. Channing Bennett, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David Sherbo-Huggins, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and Egan, Chief Judge,
and Powers, Judge.
PER CURIAM
Portions of judgments that imposed court-appointed
attorney fees in Case Nos. 16CR40902 and 13C47225
reversed; portion of judgment requiring defendant to pay
$25 probation violation fee in Case No. 13C47225 vacated;
remanded for resentencing in Case No. 13C47225; otherwise
affirmed.
Cite as
300 Or App 392
(2019) 393
PER CURIAM
This is a consolidated criminal appeal in which
defendant appeals (1) a judgment of conviction for failure to
perform the duties of a driver and reckless driving (Case No.
16CR40902); and (2) a probation revocation judgment (Case
No. 13C47225). On appeal, defendant raises six assignments of error. We reject the first three without discussion.
On the fourth and fifth assignments of error, which are
unpreserved, the state concedes that the trial court plainly
erred. Specifically, the state concedes that, under State v.
Pendergrapht, the court plainly erred by imposing court-appointed attorney fees in Case No. 16CR40902 and Case
No. 13C47225 when the record was silent as to defendant’s
ability to pay them.
(2012)
(“[A] court cannot impose attorney fees based on a record
that is silent regarding the defendant’s ability to pay those
fees.”). We agree with the state and accept its concession.
For reasons similar to those in State v. Harris,
(2018), we exercise our discretion to
correct the error and reverse the portion of the judgments
imposing attorney fees.
As for the sixth assignment of error, the state concedes that, under State v. Hillman,
(2018), the trial court erred when it imposed
a probation violation fee without announcing that it was
going to do so in open court at sentencing. We agree with
the state that Hillman establishes that the trial court erred,
and we vacate the portion of the judgment in Case No.
13C47225 imposing the $25 probation violation fee. Former
ORS 138.222(5)(a) (2015) (requiring that the entire case be
remanded if we determine that the sentencing court committed an error that requires resentencing);1 State v. Zamno,
(2019) (vacating portion of
judgment imposing DUII fine and remanding when court
did not announce the additional fine amount in the presence
of the defendant).
1
ORS 138.222 was repealed in 2017 as part of a comprehensive restructuring of the laws governing criminal appeals. See Senate Bill (SB) 896 (2017); Or
Laws 2017, ch 529, § 26. Because the judgment in this case was entered before
January 1, 2018, the effective date of SB 896, the former statute applies.
394 State v. Pickerel
Portions of judgments that imposed court-appointed
attorney fees in Case Nos. 16CR40902 and 13C47225
reversed; portion of judgment requiring defendant to pay
$25 probation violation fee in Case No. 13C47225 vacated;
remanded for resentencing in Case No. 13C47225; otherwise
affirmed.
