310 Or. App. 214 - State v. Ponce

                                     214

 Submitted March 4; portion of judgment requiring defendant to pay attorney
fees reversed, otherwise affirmed March 24; petition for review denied July 29,
                               2021 (

368 Or 511

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                        DAVID PONCE,
                     Defendant-Appellant.
                Washington County Circuit Court
                     19CR19467; A171150

483 P3d 1258



   Theodore E. Sims, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, 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 Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
   PER CURIAM
   Portion of judgment requiring defendant to pay attorney
fees reversed; otherwise affirmed.
Cite as

310 Or App 214

 (2021)                             215

        PER CURIAM
          Defendant was convicted by unanimous jury verdict of first-degree theft. ORS 164.055. On appeal, he argues
that the trial court erred in instructing the jury that it need
not be unanimous, and that this constituted structural error
entitling him to reversal of his conviction even though it was
based on a unanimous verdict. Although defendant is correct
that the instruction was erroneous, see Ramos v. Louisiana,

590 US ___

140 S Ct 1390

206 L Ed 2d 583

 (2020), it does
not constitute structural error entitling defendant to reversal of his conviction based on a unanimous verdict. See State
v. Flores Ramos,

367 Or 292, 319

478 P3d 515

 (2020) (rejecting structural error argument and concluding jury instruction error was harmless); State v. Ciraulo,

367 Or 350

478 P3d 502

 (2020) (same). Defendant also argues that the trial
court plainly erred in imposing $650 in attorney fees without considering his ability to pay. The state concedes that
this constitutes plain error. We agree and accept the state’s
concession and, in light of the circumstances and gravity of
the error, exercise our discretion to correct it. See generally
State v. Harris,

293 Or App 110, 111

426 P3d 252

 (2018)
(correcting similar error).
        Portion of judgment requiring defendant to pay
attorney fees reversed; otherwise affirmed.