State v. Caballero

                                    406

  Submitted August 7; portion of judgment in Case No. 19CR08564 requiring
 defendant to pay attorney fees reversed, otherwise affirmed October 28, 2020


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                ESTELLA MARIA CABALLERO,
                     Defendant-Appellant.
                Washington County Circuit Court
                   18CR65071, 19CR08564;
                  A170925 (Control), A170939
                                 

   Theodore E. Sims, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie J. Hortsch, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rebecca M. Auten, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
   PER CURIAM
   Portion of judgment in Case No. 19CR08564 requiring
defendant to pay attorney fees reversed; otherwise affirmed.
Cite as 

 (2020)                                              407

           PER CURIAM
         Defendant was convicted of unauthorized use of a
vehicle, ORS 164.135, and was sentenced to 18-months of
incarceration and ordered to pay $650 in court-appointed
attorney fees. Defendant appeals that judgment, arguing
that the trial court erred in imposing the attorney fees.1
         Defendant contends that the trial court plainly
erred in imposing $650 in court-appointed attorney fees in
the absence of a record that defendant “is or may be able to
pay” them. See ORS 151.505(3) (“The court may not require
a person to pay costs under this section unless the person
is or may be able to pay the costs.”); ORS 161.665(4) (“The
court may not sentence a defendant to pay costs under
this section unless the defendant is or may be able to pay
them.”); see also ORAP 5.45(1) (“No matter claimed as error
will be considered on appeal unless the claim of error was
preserved in the lower court …, provided that the appellate court may, in its discretion, consider a plain error.”).
The state concedes the error. We agree with the parties
and accept the state’s concession that the record contains
no evidence of defendant’s ability to pay the imposed attorney fees and, therefore, that the trial court plainly erred.
See State v. Coverstone, 

, 

(2014) (concluding that the trial court committed plain
error in imposing court-appointed attorney fees where the
record was silent as to the defendant’s ability to pay those
fees).
         Furthermore, where defendant was sentenced to
18-months’ incarceration and the record contains no information that she is or may be able to pay the attorney fees,
the gravity of the error justifies exercising our discretion to
correct it. See Coverstone, 

 (exercising
discretion to correct plain error in imposing $8,000 in attorney fees where the defendant was sentenced to “lengthy”
prison term and the record contained no evidence of the
defendant’s financial resources); State v. Harris, 

      This consolidated appeal includes two cases: 19CR08564 and 18CR65071.
The latter case, 18CR65071, is a probation that was revoked at the time of defendant’s sentencing on case 19CR08564. Defendant does not challenge any ruling
contained in that judgment revoking probation.
408                                        State v. Caballero

110, 112, 

 (2018) (exercising discretion to correct
plain error in imposing $642 in attorney fees).
        Portion of judgment in Case No. 19CR08564 requiring defendant to pay attorney fees reversed; otherwise
affirmed.