State v. Meyer

                                   611

 Submitted December 17, 2020; portion of judgment imposing court-appointed
    attorney fees reversed, dismissed as moot in part, otherwise affirmed
                                July 28, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                    DUSTIN D. MEYER,
                    Defendant-Appellant.
               Washington County Circuit Court
                    18CR77325; A171866
                               

   Eric Butterfield, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Nora Coon, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
   PER CURIAM
   Portion of judgment imposing court-appointed attorney
fees reversed; dismissed as moot in part; otherwise affirmed.
612                                            State v. Meyer

        PER CURIAM
         Defendant appeals a judgment of conviction by a
unanimous jury for unlawful possession of methamphetamine, ORS 475.894. He raises six assignments of error.
We affirm on his first, second, third, and fifth assignments
of error. On his fourth assignment of error, we reverse
the imposition of court-appointed attorney fees. His sixth
assignment of error, which challenges a condition of probation, has become moot and, thus, we dismiss it.
         In his first assignment of error, defendant relies
on our decision in State v. Keys, 

, 

 (2020) (Keys I) to argue that the trial court lacked
jurisdiction over his case because the record does not establish that defendant’s waiver of his right to a preliminary
hearing was knowing. Although defendant did not preserve
this contention, consistent with Keys I, he asserts that preservation is excused because it is a jurisdictional error. The
state responds, among other things, that Keys I was wrongly
decided.
         The Supreme Court recently agreed with the state
on that score, holding that the absence of a knowing waiver
of the right to a preliminary hearing does not deprive a trial
court of jurisdiction and, correlatively, does not amount to
the type of error for which preservation is excused. State v.
Keys, 

, 

 (2021) (Keys II).
Rather, an unpreserved contention that a defendant’s waiver
of the right to a preliminary hearing was not knowing is
subject to review under the ordinary plain error standards.
Here, having considered the record, it is not plain that defendant’s waiver was not knowing. Therefore, applying Keys II,
we reject defendant’s first assignment of error on the ground
that the error is not preserved and not plain.
        In his second assignment of error, defendant argues
that the trial court should have suppressed the methamphetamine that led to his conviction on the ground that
it was discovered during a traffic stop that was unlawfully extended in violation of Article I, section 9, of the
Oregon Constitution. But this assignment of error is not
preserved because defendant never moved to suppress the
evidence and never contended that it was the product of an
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 (2021)                             613

unconstitutional search or seizure. And it is not plain that
the evidence would be subject to suppression. As the state
points out, whether evidence was obtained as a result of an
unconstitutional search or seizure involves a fact-intensive
analysis that never took place in this case because defendant never sought to suppress the evidence. Accordingly, we
reject the second assignment of error because, like the first,
it is not preserved and not plain.
         In his third assignment of error, defendant contends that the trial court erred by instructing the jury that
it could return a nonunanimous verdict. The trial court
indeed erred, but because the verdict was unanimous, and
the record does not reflect that defendant was harmed in any
other way by the error, defendant is not entitled to reversal
of his conviction. State v. Flores Ramos, 

, 

 (2020).
         In his fourth assignment of error, defendant contends that the trial court plainly erred by ordering him
to pay $650 in court-appointed attorney fees because the
record does not support a determination that defendant can
or will be able to pay those fees. He requests that we exercise discretion to correct that error, for the same reasons
that we have done so in many other cases. See, e.g., State v.
Swartz, 

, 

 (2017). The state
responds that this case is factually comparable to State v.
Baco, 

, 

, rev den, 

 (2014), in which, on plain error review, we declined to
exercise our discretion to correct a $510 attorney fee order
where, as summed up in the state’s brief here, “defendant’s
sentence did not prevent him from working and record suggested defendant may be able to pay.” The defendant was
sentenced to probation and not prevented from working.

 The state urges us to treat this case similarly to Baco
because defendant was sentenced to probation, which, in
theory, would not prevent him from working.
         Having considered the record, we conclude that the
trial court plainly erred and exercise our discretion to correct that error. The amount imposed is not insignificant.
Although defendant was sentenced to probation like the
defendant in Baco and, thus, could work, we did not hold
614                                           State v. Meyer

in Baco that a sentence of probation categorically weighs
against the exercise of discretion to correct an attorney fee
error. See generally Baco, 

. Further,
we have exercised our discretion to correct similar errors
in cases involving probationary sentences. See, e.g., State
v. Guzman-Vera, 

, 

,
rev den, 

 (2020) (exercising discretion to correct
plainly erroneous attorney fee award for a defendant sentenced to probation). Beyond that, unlike in Baco—in which
the defendant had agreed to pay attorney fees on a different
charge—there is not comparable evidence in this case. 

. The closest is that the trial court allowed
a modification of defendant’s pretrial release agreement to
permit out-of-state travel for the purposes of employment.
The modification order is ambiguous as to whether defendant
was, in fact, employed, or likely to obtain employment. In
the absence of a more complete picture of defendant’s financial circumstances, we exercise our discretion to correct the
error, as we did in Guzman-Vera, for reasons comparable to
those stated in State v. Eubanks, 

, 

 (2019), and the cases cited therein. Guzman-Vera,

.
         In his fifth assignment of error, defendant contends
that the trial court plainly erred by imposing a $200 fine
without considering defendant’s financial circumstances.
But, as defendant himself recognizes, we have consistently
rejected identical arguments. See, e.g., State v. Shepherd,

, 

, rev den, 

(2020); State v. Wheeler, 

, 

(2015). We do so again here.
         In his sixth and final assignment of error, defendant
challenges a probation condition requiring him to submit
to searches by his probation officer regardless of whether
the officer has reasonable grounds for the search. The state
concedes the error, acknowledging that, in State v. Schwab,

, 

 (1989), we held invalid an
identical condition of probation that was missing a “reasonable grounds” requirement for searches.
       Defendant and the state are correct that, under
Schwab, the challenged condition of probation is not a
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 (2021)                             615

permissible one. That is because, as defendant puts it, “ORS
137.540(2) does not allow a court to craft a special condition
that dispenses with the ‘reasonable grounds’ restriction”
on searches by probation officers. Nevertheless, defendant’s
probation has come to an end, rendering his challenge to
that erroneous condition moot because reversing the judgment for the purpose of correcting that erroneous condition
would have no practical effect on defendant’s rights. For that
reason, we conclude that defendant’s sixth assignment of
error, although meritorious, does not require reversal.
        Portion of judgment imposing court-appointed
attorney fees reversed; dismissed as moot in part; otherwise
affirmed.