State v. Hawkins

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No. 403 August 26, 2015 387 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. JOHN FREDERICK HAWKINS, Defendant-Appellant. Polk County Circuit Court 14CR04630; A157344 Monte S. Campbell, Judge. Submitted July 10, 2015. Peter Gartlan, Chief Defender, and Emily P. Seltzer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent. Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge. PER CURIAM Portion of judgment requiring defendant to pay attorney fees reversed; otherwise affirmed. 388 State v. Hawkins PER CURIAM Defendant appeals the trial court’s judgment convicting and sentencing him for one count of driving under the influence of intoxicants. ORS 813.010. On appeal, defendant claims, and the state concedes, that the trial court committed plain error by imposing court-appointed attorney fees because the record contains no evidence that defendant “is or may be able” to pay the fees. See ORS 151.505(3) (“The court may not require a person to pay costs under this section unless the person is or may be able to pay the costs.”); ORS 161.665(4) (“The court may not sentence a defendant to pay costs under this section unless the defendant is or may be able to pay them.”). We agree with the parties that the trial court committed plain error by imposing the fees. See State v. Coverstone, 260 Or App 714, 716, 320 P3d 670 (2014) (holding that a trial court commits plain error by imposing courtappointed attorney fees where the record is silent as to the defendant’s ability to pay the fees). We further conclude that, for the reasons articulated in Coverstone, it is appropriate to exercise our discretion to correct the error. Portion of judgment requiring defendant to pay attorney fees reversed; otherwise affirmed.

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