Portion of judgment requiring defendant to pay attorney… · Decided 2021-04-07
581
Submitted February 23; portion of judgment requiring defendant to pay
attorney fees and indigent contribution reversed, otherwise affirmed
April 7, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
MARK ANTHONY GONZALES,
Defendant-Appellant.
Yamhill County Circuit Court
18CR36507; A171812
Ladd J. Wiles, Judge.
Frances J. Gray filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-deCoursey, Assistant
Attorney General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
Portion of judgment requiring defendant to pay attorney
fees and indigent contribution reversed; otherwise affirmed.
582 State v. Gonzales
PER CURIAM
Defendant appeals a judgment of conviction for
one count of hindering prosecution, ORS 162.325, that was
entered after a guilty plea. On appeal, defendant raises two
assignments of error. We reject his first assignment without
discussion and write only to address his second, in which
he contends that the trial court plainly erred by imposing
“appointed counsel and indigent contribution” fees when, in
his view, the record was insufficient to establish that he had
the ability to pay. 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.”); see also 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.”).
The state concedes that the record is insufficient
to establish that defendant had the ability to pay those
fees and that the trial court erred when it concluded that
defendant had the ability to pay based on his ability to earn
money upon his release. The state further concedes that the
error is plain and that we should exercise our discretion to
correct it. We agree with and accept the state’s concession.
We conclude that the gravity of the error weighs in favor of
correcting it and that it is appropriate to exercise our discretion to do so. See State v. Harris,
(2018) (exercising discretion to correct plain error
imposition of attorney fees absent evidence that defendant
“is or may be able to pay” them (quoting ORS 151.505(3)
and ORS 161.665(4))); State v. Wheeler,
