State v. Vierria

Where a defendant is deprived of otherwise available options for reducing the burden associated with paying mandatory fees due to the court’s imposition of those fees outside the defendant’s presence, the error is not harmless. See, e.g., State v. Postlethwait, 303 Or App 163, 164, 459 P3d 964, rev den, 366 Or 827 (2020)

Petitioner appealed the trial court’s imposition of a mandatory probation violation fee for several offenses at $25 per offense. Petitioner argued that the trial court erred in imposing those fees outside of his presence. Petitioner asserted that the error was not harmless because he was denied the chance to request one of the several different payment options available to defendants. In response, the state argued that because the fee is mandatory under ORS 137.540(12)(a), the error was harmless. Where a defendant is deprived of otherwise available options for reducing the burden associated with paying mandatory fees due to the court’s imposition of those fees outside the defendant’s presence, the error is not harmless. The court concluded that the error is not harmless, that defendant should have had the option to urge those possibilities, and that the appropriate disposition is to remand for resentencing. See, e.g., State v. Postlethwait, 303 Or App 163, 164, 459 P3d 964, rev den, 366 Or 827 (2020)(vacating portion of judgment requiring defendant to pay $25 probation-violation fee and remanding for resentencing). Vacated in part, remanded in part, otherwise affirmed.