State v. Cook, 267 Or. App. 776

Defendant pleaded guilty to three counts of encouraging child sexual abuse in the first degree and was sentenced to a stipulated 225-month prison term plus 76 months post-prison supervision.
The prosecutor prepared judgments listing attorney fees of $1,600 per conviction (total $4,800); defense counsel asked the court to consider reducing fees to about one-third because the client would be in prison and likely unable to pay.
The court initially said it would authorize attorney fees and leave monthly-payment findings to the Department of Corrections at release, then signed the judgments prepared by the state.
After off-the-record discussions, the court reduced the per-count fee from $1,600 to $820 (total $2,460); defense counsel stated that “everybody’s good with that” reduction.
On appeal, defendant argued the fee award violated ORS 151.505(3) and ORS 161.665(4) because the record contains no evidence of ability to pay; the state conceded error and proposed remand to adjust fees based on sentencing arguments.
The court declined the state’s concession, independently reviewed the record, and affirmed, finding the alleged error was invited by defense counsel and, alternatively, not plain error given unrecorded proceedings.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court erred by awarding attorney fees without record evidence that defendant "is or may be able to pay" as required by statute	State conceded the award lacked supporting evidence but asked for remand to enter a reduced award based on sentencing arguments	Defendant argued the entire fee award must be vacated because the record contains no evidence of ability to pay	Court refused to accept the concession, held defendant invited the award by proposing and agreeing to reductions and, alternatively, that plain-error review fails because resolving the claim would require speculation about off-the-record discussions; affirmed

State v. R. L. W., 267 Or App 725 (discussing court's discretion to reject opposing counsel's concession of error)
State v. Ferguson, 201 Or App 261 (invited error doctrine bars reviewing errors a party induced)
State ex rel. Juv. Dept. v. S. P., 346 Or 592 (refusing review where party encouraged the error)
Ailes v. Portland Meadows, Inc., 312 Or 376 (plain-error requires error apparent on the record without resort to competing inferences)
State v. Harbick, 234 Or App 699 (declining plain-error relief when off-the-record proceedings might explain court action)
State v. Coverstone, 260 Or App 714 (awarding fees was plain error where there was no evidence of off-the-record discussions)