State v. White

                                   159

   Submitted February 28; portion of judgments requiring defendant to pay
         attorney fees reversed, otherwise affirmed March 18, 2020


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                 BRYAN MICHAEL WHITE,
                    Defendant-Appellant.
               Washington County Circuit Court
                  18CR53348, 18CR54305;
                 A169094 (Control), A169095
                                

   Theodore E. Sims, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah De La Cruz, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
   PER CURIAM
   Portion of judgments requiring defendant to pay attorney
fees reversed; otherwise affirmed.
160                                             State v. White

        PER CURIAM
         Defendant pleaded guilty in the first of these consolidated cases to unauthorized departure, ORS 162.175,
and was sentenced to a jail term and ordered to pay $400 in
attorney fees and a $100 fine. He pleaded guilty in the second case to possession of methamphetamine, ORS 475.894,
and was sentenced to a jail term and ordered to pay $650
in attorney fees and a $200 fine. On appeal, he argues that
the trial court erred in imposing the attorney fees and fines
in both cases, because the trial court failed to consider his
ability to pay those fines, and nothing in the record indicates that he has the ability to pay. The state acknowledges
that nothing in the record would support a conclusion that
defendant has the ability to pay but concedes the error only
as to the attorney fees. See generally State v. Coverstone, 

, 

 (2014) (where the record is
silent as to a defendant’s ability to pay, it was plain error to
impose attorney fees). The state also is correct that our case
law precludes treating the imposition of the fines in this circumstance as plain error. See State v. Shepherd, 

, 

 (2020). For the reasons stated in State v.
Harris, 

, 

 (2018), we exercise
our discretion to correct the erroneous attorney fees
        Portion of judgments requiring defendant to pay
attorney fees reversed; otherwise affirmed.