314 Or. App. 116 - State v. Ponzi

                                 116

              Submitted July 20, affirmed August 18, 2021


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
               BERNARD WILLIAM PONZI,
                   aka Bernard W. Ponzi,
                    Defendant-Appellant.
               Columbia County Circuit Court
                    16CR59183; A172825

494 P3d 379



  Ted E. Grove, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah De La Cruz, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Adam Holbrook, Assistant Attorney
General, filed the brief for respondent.
   Before DeVore, Presiding Judge, and DeHoog, Judge, and
Sercombe, Senior Judge.
  PER CURIAM
  Affirmed.
Cite as

314 Or App 116

 (2021)                              117

        PER CURIAM
         Defendant, who pleaded no contest to driving under
the influence of intoxicants (DUII), appeals his judgment
of conviction, arguing that the trial court plainly erred in
imposing $550 in attorney fees without considering his ability to pay them and in imposing a $255 DUII conviction fee
without considering whether to waive it. In particular, he
focuses on the fact that the trial court indicated at sentencing that his bail would be used to satisfy those financial
obligations; he argued that use of bail for those financial
obligations was impermissible in light of State v. Morales,

367 Or 222, 235

476 P3d 954

 (2020), in which the Supreme
Court recently held that a trial court had erred in concluding that a defendant had the ability to pay attorney fees
from bail that had been posted by a third party.
         Morales is not controlling here. At sentencing,
defense counsel represented to the court that “I believe
there’s bail posted in the account to take care of financials,”
and agreed that after those financial obligations were satisfied, any amount that was left over would go to satisfy defendant’s unpaid child support obligations rather than being
refunded to defendant. Aside from the fact that any error
here would not be considered plain error given the implication that the funds in question belonged to defendant rather
than a third party, any error here was invited. See generally
State v. Ferguson,

201 Or App 261, 269

119 P3d 794

 (2005),
rev den,

340 Or 34

 (2006) (if an appellant was actively instrumental in bringing about an error, the judgment should not
be reversed because of it). Accordingly, we reject defendant’s
assertions that the court erred in imposing attorney fees
and the DUII fee.
        In a pro se supplemental brief, defendant raises
additional issues, which we reject without discussion.
        Affirmed.