State v. Turner , 322 Or. App. 363 ( 2022 )

363
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted September 2; portion of judgment requiring defendant to pay
extradition costs reversed, otherwise affirmed October 12, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSHUA LEE TURNER,
Defendant-Appellant.
Washington County Circuit Court
D090331M; A176403
Ricardo J. Menchaca, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mark Kimbrell, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
TOOKEY, P. J.
Portion of judgment requiring defendant to pay extradi-
tion costs reversed; otherwise affirmed.
364 State v. Turner
TOOKEY, P. J.
Defendant was convicted of assault in the fourth
degree constituting domestic violence and was sentenced to
two years of probation. His probation was revoked in June
2021, and he was sentenced to six months in jail. The trial
court also required defendant to pay $2,340.68 in extradi-
tion costs. Defendant raises one assignment of error, argu-
ing that the trial court plainly erred by imposing the extra-
dition costs without sufficient evidence that defendant was
or may be able to pay those costs. ORS 161.665(4). The error
is unpreserved, but defendant urges us to review and cor-
rect it as plain error.
The state concedes that the trial court erred in fail-
ing to address the question of whether defendant was or may
be able to pay the imposed costs and concedes that the record
contains insufficient evidence regarding defendant’s abil-
ity to pay. The state further agrees that plain error review
is appropriate under our case law. See State v. Velasquez-
Orozco, 285 Or App 881, 882, 398 P3d 501, rev den, 361 Or
801 (2017). We agree with and accept the state’s concession.
Furthermore, we conclude that it is appropriate to exercise
our discretion to correct the plain error under the circum-
stances of this case. In particular, the error is grave in light
of the amount of costs ordered and the lack of evidence in
the record suggesting that defendant would be able to pay
the costs. State v. Fleet, 270 Or App 246, 247, 347 P3d 345
(2015) (considering, among other circumstances, amount
of fees and lack of evidence in the record suggesting that
defendant would be able to pay the fees in concluding that it
is appropriate to exercise discretion to correct plain error).
Portion of judgment requiring defendant to pay
extradition costs reversed; otherwise affirmed.