STATE OF OREGON v. WESLEY LEE POSTON (2017)

PER CURIAM

In this criminal appeal, defendant challenges the trial court's imposition of $416 in court-appointed attorney fees. He asserts that the court erred because it imposed fees without “facts in the record” showing that defendant “is or may be able to pay” the costs of his defense. 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.”); see State v. Coverstone, 260 Or App 714, 716, 320 P3d 670 (2014) (holding that a trial court commits plain error by imposing court-appointed attorney fees where the record is silent as to the defendant's ability to pay the fees ordered). The state argues that defendant failed to preserve that assignment of error and that any error by the trial court was not plain given that there was evidence in the record that defendant was receiving disability income.

We agree with the state that defendant failed to preserve the argument he makes on appeal. We also agree that, given that there was evidence in the record that defendant was receiving disability income, there is no plain error. See State v. Eshaia, 253 Or App 676, 680, 291 P3d 805 (2012) (evidence in the record that the defendant received disability income was sufficient to support the imposition of $400 in court-appointed attorney fees).

Affirmed.

PER CURIAM