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Court of Appeals of Oregon.

STATE of Oregon, Plaintiff–Respondent, v. Gordon Fraser STRONG, Defendant–Appellant.

Nos. 11C45285; A151445.

Decided: April 30, 2014

Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and TOOKEY, Judge. Peter Gartlan, Chief Defender, and Mary M. Reese, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.

Defendant appeals a judgment convicting him of five counts of first-degree sexual abuse, asserting that the trial court plainly erred in ordering him to pay $11,760 in count-appointed attorney fees in the absence of evidence in the record of his ability to pay those fees. See ORS 151.505(3) (a court may not order a defendant to pay fees unless the defendant “is or may be able” to pay them); ORS 161.665(4) (same); see also State v. Kanuch, 231 Or.App. 20, 24, 217 P3d 1082 (2009) (the state bears the burden of proving that a defendant is or may be able to pay fees). Defendant points out that, at the time of sentencing, he was 64 years old, that he was sentenced to 186 months of imprisonment, and that no evidence was adduced that he had an ability to pay the fees. We agree with defendant that the trial court in this case committed plain error. See State v. Coverstone, 260 Or.App. 714, 320 P3d 670 (2014). Furthermore, for the reasons set forth in Coverstone, 260 Or.App. at 717, we conclude that it is appropriate to exercise our discretion to correct the error in this case.

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