State v. Ponce

483 P.3d 1258, 310 Or. App. 214

Opinion

Submitted March 4; portion of judgment requiring defendant to pay attorney fees reversed, otherwise affirmed March 24; petition for review denied July 29, 2021 (368 Or 511)

STATE OF OREGON, Plaintiff-Respondent,

v.

DAVID PONCE, Defendant-Appellant.

Washington County Circuit Court 19CR19467; A171150

483 P3d 1258

Theodore E. Sims, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Matthew Blythe, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, filed the brief for respondent.

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

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

Cite as 310 Or App 214 (2021) 215

PER CURIAM Defendant was convicted by unanimous jury verdict of first-degree theft. ORS 164.055. On appeal, he argues that the trial court erred in instructing the jury that it need not be unanimous, and that this constituted structural error entitling him to reversal of his conviction even though it was based on a unanimous verdict. Although defendant is correct that the instruction was erroneous, see Ramos v. Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), it does not constitute structural error entitling defendant to reversal of his conviction based on a unanimous verdict. See State v. Flores Ramos, 367 Or 292, 319, 478 P3d 515 (2020) (rejecting structural error argument and concluding jury instruction error was harmless); State v. Ciraulo, 367 Or 350, 478 P3d 502 (2020) (same). Defendant also argues that the trial court plainly erred in imposing $650 in attorney fees without considering his ability to pay. The state concedes that this constitutes plain error. We agree and accept the state’s concession and, in light of the circumstances and gravity of the error, exercise our discretion to correct it. See generally State v. Harris, 293 Or App 110, 111, 426 P3d 252 (2018) (correcting similar error).

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