State v. Prieto ( 2023 )

526 December 13, 2023 No. 652
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
RUSSELL JAMES PRIETO,
Defendant-Appellant.
Malheur County Circuit Court
21CR13427; A177962
Erin K. Landis, Judge.
Submitted November 20, 2023.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Nora Coon, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patricia G. Rincon, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
Remanded for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 329 Or App 526 (2023) 527
ORTEGA, P. J.
Defendant appeals his conviction for first-degree
failure to appear, ORS 162.205, making several unpreserved
arguments. Defendant first argues that the trial court
plainly erred in failing to acquit him of failure to appear
because the state’s evidence did not establish unambigu-
ously that he knew that he was required to appear on a spec-
ified date. We consider the “facts in the light most favorable
to the state and draw all reasonable inferences in the state’s
favor” to determine whether the evidence was sufficient to
permit a rational factfinder to “find all the elements of the
charged crime beyond a reasonable doubt” and conclude
that the trial court did not plainly err. State v. Yerton, 317
Or App 538, 539, 505 P3d 428 (2022). The record is sufficient
to support a conclusion that the trial court orally informed
defendant that he was to appear on a specified date, and
that he did not do so. We reject defendant’s argument with-
out further discussion.
Defendant next argues that the trial court plainly
erred in imposing a $200 fine based on a mistaken belief
that the fine was mandatory. He also argues that the court
was required to consider his ability to pay before imposing
the fine. In imposing the fine, the court stated that it was
a “mandatory” minimum fine. The state concedes that the
court erred in imposing the fine on the mistaken belief that
it was mandatory. We agree and accept that concession. See
State v. Cid, 315 Or App 273, 500 P3d 748 (2021) (finding
reversible plain error under similar circumstances). We
exercise our discretion to correct the error due to its grav-
ity. See id. at 274 (same). Given our disposition, we need
not reach defendant’s alternative argument concerning the
imposition of the fine.
Remanded for resentencing; otherwise affirmed.