State v. Waltenburg, 422 P.3d 433, 293 Or. App. 234 (2018)

Aug. 1, 2018 · Court of Appeals of Oregon · A164759

422 P.3d 433, 293 Or. App. 234

STATE of Oregon, Plaintiff-Respondent,
v.
Matthew Nathan WALTENBURG, Defendant-Appellant.

A164759

Court of Appeals of Oregon.

Submitted June 1, 2018.
August 1, 2018

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Christopher A. Perdue, Assistant Attorney General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

PER CURIAM

Defendant appeals a judgment of conviction for possession of methamphetamine and driving under the influence of intoxicants. Defendant argues that the trial court committed plain error when it ordered him to pay $186 in court-appointed attorney fees because the record contains no evidence of defendant's ability to pay them.¹ The state concedes that, under State v. Below , 264 Or. App. 384, 387-88, 332 P.3d 329 (2014), and State v. Pendergrapht , 251 Or. App. 630, 634, 284 P.3d 573 (2012), the trial court plainly erred in imposing $186 in attorney fees. We agree that the trial court committed plain error, accept the state's concession, and conclude that it is appropriate to exercise our discretion to correct the error in this case because of the gravity of the error and the lack of any evidence of financial resources.

Portion of judgment requiring defendant to pay court-appointed attorney fees reversed; otherwise affirmed.

1 The trial court imposed $567 in court-appointed attorney fees, but reduced the amount of "actual owed" attorney fees in the judgment to $186.