State v. Smith

                                   724

Submitted April 6; portion of judgment requiring defendant to pay $255 DUII
   conviction fee vacated, remanded for resentencing, otherwise affirmed
                                June 30, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                RYAN CHRISTOPHER SMITH,
                    Defendant-Appellant.
                  Lane County Circuit Court
                    15CR38168; A171823
                               

  Kamala H Shugar, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Philip Thoennes, 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 $255
DUII conviction fee vacated; remanded for resentencing;
otherwise affirmed.
Cite as 

 (2021)                            725

        PER CURIAM
          Defendant appeals a judgment of conviction for
driving under the influence of intoxicants (DUII), ORS
813.010(4), challenging, in his combined first three assignments of error, the court’s termination of diversion and entry
of judgment pursuant to his guilty plea. Those assignments
of error, however, are not reviewable under ORS 138.105(5);
defendant’s arguments to the contrary are foreclosed by our
recent decisions in State v. Merrill, 

, 

 (2021), and State v. Redick, 

, 

(2021).
         In his fourth assignment of error, defendant contends that the trial court erred by imposing a $255 DUII
conviction fee in the judgment that was not announced in his
presence at sentencing. As in Merrill, “[t]hat claim of error
does not challenge defendant’s conviction and is reviewable
under ORS 138.105(7), which allows review of sentencing
decisions for compliance with the law.” 

.
The state concedes the error, and we accept that concession. See 

 (vacating $490 “state obligation” and
remanding for resentencing where court erred in imposing
it outside the defendant’s presence).
         Portion of judgment requiring defendant to pay
$255 DUII conviction fee vacated; remanded for resentencing; otherwise affirmed.