State v. Baco
| Decision Date | 02 April 2014 |
| Docket Number | CR1100589,A151427. |
| Citation | 324 P.3d 491,262 Or.App. 169 |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. John Akamine BACO, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
OPINION TEXT STARTS HERE
Peter Gartlan, Chief Defender, and David Sherbo–Huggins, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and David B. Thompson, Senior Assistant Attorney General, filed the brief for respondent.
Before ORTEGA, Presiding Judge, and DeVORE, Judge, and EDMONDS, Senior Judge.
Defendant was convicted of criminal impersonation of a peace officer, in violation of ORS 162.367. Defendant appeals the resulting judgment, challenging his conviction on the ground that the state charged him by indictment with a different crime-criminal impersonation of a public servant, to wit: a peace officer, in violation of ORS 162.365. The state concedes the error. We agree and accept the state's concession. See State v. Selmer, 231 Or.App. 31, 217 P.3d 1092 (2009), rev. den.,347 Or. 608, 226 P.3d 43 (2010) (). Accordingly, we reverse the judgment and remand for an entry of a corrected judgment.
Defendant also challenges the imposition of court-appointed attorney fees, contending that the trial court erred by failing to consider his ability to pay before ordering him to pay fees in the amount of $510. See State v. Kanuch, 231 Or.App. 20, 24–25, 217 P.3d 1082 (2009). Defendant acknowledges that his claim of error is unpreserved but asks us to review and correct the error as plain error. ORAP 5.45(1). The state bears the burden of proving that defendant “is or may be able to pay” attorney fees, and we have held that it is plain error for the trial court not to comply with the requirement that it find that a defendant has the ability to pay fees before it imposes them. State v. Coverstone, 260 Or.App. 714, 320 P.3d 670 (2014). Here, the record does not show that the state met its burden of demonstrating that defendant was able to pay the fees.
We must determine, however, when reviewing for plain error, whether it is appropriate for us to exercise our discretion to correct the error. Id. at 716–17, 320 P.3d 670. We consider, among other things, “the gravity of the error; the ends of justice in the particular case; how the error came to the court's attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way.” Id. ...
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State v. Belen, 12C47258
...no evidence of the defendant's financial resources and the defendant was sentenced to 298 months' imprisonment); cf. State v. Baco, 262 Or.App. 169, 171, 324 P.3d 491, rev. den., 355 Or. 751, 331 P.3d 1010 (2014) (declining to exercise discretion to correct plain error in imposing $500 in a......
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State v. Thomas
...that he did not object to the imposition of fees, and requests that we review for plain error. Pointing to State v. Baco , 262 Or. App. 169, 170-71, 324 P.3d 491 (2014) ; State v. Pendergrapht , 251 Or. App. 630, 284 P.3d 573 (2012) ; and State v. Kanuch , 231 Or. App. 20, 24, 217 P.3d 1082......
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State v. Below
...630 (same); Chavez, 263 Or.App. at 188, 326 P.3d 629 (same); Strong, 262 Or.App. at 586, 325 P.3d 795 (same); cf. State v. Baco, 262 Or.App. 169, 171, 324 P.3d 491 (2014) (declining to exercise discretion to correct imposition of $510 in attorney fees on the ground that the amount was not s......
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State v. Brown
...that, for a significant period of time, the defendant would likely have no way of earning money to pay the fee. Id.; cf. State v. Baco, 262 Or.App. 169, 324 P.3d 491, rev. den., 355 Or. 751, 331 P.3d 1010 (2014) (any error in imposing $510 in court-appointed attorney fees was not grave wher......