STATE v. STARODUBOV (2019)

Court of Appeals of Oregon.

STATE of Oregon, Plaintiff-Respondent, v. Eugenia Y. STARODUBOV, Defendant-Appellant.

A165615

Decided: May 01, 2019

Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.

Appealing a judgment of conviction for unlawful possession of heroin, ORS 475.854, defendant assigns error to the trial court's (1) failure to supply a concurrence instruction to the jury and (2) imposition of $887 in court-appointed attorney fees in the absence of evidence that defendant had the statutorily required ability, or potential ability, to pay those fees. Neither assignment of error is preserved. We reject the first assignment of error on the ground that the trial court's error, if any, is not plain. As to the second assignment of error, the state concedes—correctly—that on this record, the trial court's imposition of attorney fees constituted plain error under our case law. For reasons similar to those stated in State v. Harris, 293 Or. App. 110, 111, 426 P.3d 252 (2018), we exercise our discretion to correct that error.

Portion of the judgment requiring defendant to pay attorney fees reversed; otherwise affirmed.

PER CURIAM

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