State v. Aquino

                               498

           Submitted May 29, 2020, affirmed July 21, 2021


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
               CARLOS FLORES AQUINO,
                   Defendant-Appellant.
              Washington County Circuit Court
                   18CR53314; A169447
                            

  Oscar Garcia, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and John Evans, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Kistler, Senior Judge.
  PER CURIAM
  Affirmed.
Cite as 

 (2021)                           499

        PER CURIAM
         The state charged defendant with a felony (unlawful use of a weapon) and two misdemeanors (menacing and
second-degree criminal trespass). The jury acquitted defendant of the felony but unanimously convicted him of the two
misdemeanors. On appeal, defendant assigns error to the
nonunanimous jury instruction that the trial court gave
and to the amount of the attorney fees that the trial court
awarded. We affirm.
        On the first assignment of error, the trial court
instructed the jury, without objection, that “ten or more
jurors must agree on your verdict.” As noted, the jury unanimously found defendant guilty of the two misdemeanors and
acquitted him of the felony. On appeal, defendant argues
that the trial court’s nonunanimous jury instruction was a
plain error, a structural error, or both. We agree that the
instruction was erroneous. Ramos v. Louisiana, 

,

, 

 (2020); State v. Heine, 

, 

 (2021). However, because the
jury unanimously found defendant guilty of the two misdemeanors, the error was harmless. See State v. Kincheloe, 

, 

 (2020), cert den, ___ US ___, 

, 

 (2021).
         On the second assignment of error, defendant challenges the amount of the attorney fees that the trial court
assessed him at sentencing. The record discloses that defendant was represented by a court-appointed attorney and
that the attorney’s office bills $650 for a case involving a
felony and $400 for a case that involves a misdemeanor but
no felony. When the court assessed defendant $650 in attorney fees, his lawyer asked whether the fee should be $400
because defendant had been acquitted of the felony. The
court explained that the attorney’s office had billed $650,
and defendant’s attorney said, “Okay. Just wanted to make
sure. Thank you, Judge.”
         On appeal, defendant argues that, because he was
acquitted of the felony charge and convicted only of the two
misdemeanors, the court should have assessed him $400
rather than $650 in attorney fees. As defendant acknowledges, there may be some question as to whether he preserved
500                                                          State v. Aquino

his challenge to the amount of fees assessed. However, even
if defendant preserved that issue, our decision in State v.
Kreis, 

, 

 (2018), rev’d on other
grounds, 

, 

 (2019), resolves it. It
establishes that the trial court was authorized to assess him
the fees associated with defending the felony charge even
though he was acquitted of that charge and only convicted
of the two misdemeanors.1
           Affirmed.




    1
      Defendant acknowledged in his opening brief that our decision in Kreis
is controlling but noted that, when he filed his brief, the Supreme Court had
allowed review in Kreis and had not yet issued its decision. When the Supreme
Court later decided Kreis, it did not question our resolution of the issue in Kreis
that this case presents.