State v. Broome

Under ORAP 5.45(1), the Court of Appeals may exercise its discretion to reverse a judgment ordering a defendant to pay attorney fees where the record is silent as to his ability to pay as plain error.

Defendant was convicted of four counts of robbery in the first degree with a firearm (ORS 164.415), four counts of unlawful use of a weapon with a firearm (ORS 166.220(1)(a), theft in the first degree (ORS 164.055), and felon in possession of a firearm (ORS 166.270). On appeal, Defendant assigned error to the trial court instructing the jury it could find Defendant guilty by nonunanimous verdicts, the trial court accepting the nonunanimous verdicts and the trial court’s imposition of $1,000 in attorney fees without determination of his ability to pay them. The Court rejected without discussion the first two assignments; as to the attorney fees, Defendant argued the trial court plainly erred, and that his error was preserved or that is was plain error the Court should reverse under ORAP 5.45(1). The Court held because the record was silent as to Defendant’s ability to pay, combined with the amount ordered and the length of Defendant’s prison term, the trial court erred and it should exercise its discretion to correct the error. Portion of judgment requiring Defendant to pay attorney fees reversed; otherwise affirmed.