Dеfendant was convicted of conspiracy to commit second-degree burglary and was sentenced to probation. Defendant later admitted that he had violated the conditions of his probation, and the trial court revoked his probation. Defendant received a sentence on revocation of 60 days in jail, without credit for time served, and twelve months of post-prison supervision. The judgment includes a money award that, among other things, requires defendant to pay $210 in attorney fees. On appeal, defendant challenges both the imposition of attorney fees and the trial court’s decision to deny him credit for time served. For the reasons outlined below, we reverse the portion of the judgment thаt requires defendant to pay $210 in attorney fees and otherwise affirm.
The pertinent facts are procedural and undisputed. In 2011, defendant plеaded guilty to a charge of conspiracy to commit second-degree
In 2013, defendant’s probation officer recommended that the court revoke defendant’s probation because he had violated several conditions of his probation. At a subsequent hearing, defendant admitted that he had violated his probation conditions in the ways alleged. The trial court accepted defendant’s admissions and found that he had violated his probation. The court observed — and dеfendant agreed— that defendant was serving parole sanctions in another case at the time of the probation-revocation hearing in this case but was “almost done” with those sanctions.
At the hearing, the trial court stated that it was going to impose “the maximum sentence” that it could on the probation revocation, which “is 60 days with one-year post-prison supervision.” The court explained that it would require defendant to serve the 60-day jail term “day for day” and that it would not give defendant any credit for time served against that jail term. Defendant acknowledged that “thе rules” allowed the trial court to deny credit for time served, because his conviction was for a felony,
The trial court rejected that argument, observing that defendant was serving “a parole sanction so he would not have been able to bail out under any circumstance.” Defendant did not challenge the court’s understanding that he was serving a parole sanction; indeed, he acknowledged that his argument was made “more interesting” because of “the parole hold.” After further colloquy, the court explained that it was rejecting defendant’s equal-protection argument because — even if defendant had been able to obtain prehear-ing release from jail for the probation violation — “he would still be incarcerated *** because of the parole hold.” The court did not say anything on the record about attorney fees at the hearing.
The trial court subsequently entered a judgment titled “judgment on probation” that revoked defendant’s probation, sentenced defendant to 60 days of jail and 12 months of рost-prison supervision (as described above), ordered defendant to pay, among other things, $210 in attorney fees.
On appeal, defendant first challenges the trial court’s entry of a judgment ordering him to pay $210 in attorney fees as part of his sentence on revocation. Defendant asserts that the court erred by including that term in the written judgment document when the court had not indicated, at the probation-revocation hearing, that his sentence would include that requirement. The state concedes that “imposition of the $210 attorney fee award without defendant’s prеsence violated ORS 137.030.”
We agree that the trial court erred by including a term in defendant’s judgment that the court had not announced in his presence. See State v. Johnson, 260 Or App 176, 177,
In his second assignment of error, defendant challenges the trial court’s decision to deny him credit for timе served against the 60-day jail term imposed as part of the sentence on revocation. Defendant asserts, as he did below, that the denial means that he is required to serve a longer term of incarceration than a nonindigent defendant
We need not address whether defendаnt has correctly framed the federal equal-protection analysis or how equal-protection principles would apply in a сase where an indigent defendant was able to establish that he was required to serve more jail time than a similarly situated, but nonin-digent, defendant would have served. That is because defendant has not established, as a factual matter, that he was required to serve more time than a nonindigent dеfendant would have served under the circumstances present here.
Defendant’s argument necessarily is premised on the unstated assumption thаt he was jailed in the days leading up to his probation-revocation hearing solely because of the pending allegation that he had viоlated his probation in this case. That assumption is flawed. The trial court found as fact that defendant was serving a separate parolе sanction in another case at the time of the probation-revocation hearing and, therefore, would not have been able to obtain release under any circumstance — even if he could have posted bail. Thus, defendant was not disadvantaged by his indigent status; he served nо more jail time than would have a similarly situated nonindigent defendant. The trial court therefore ruled correctly when it rejected defendant’s еqual-protection argument.
Portion of judgment requiring defendant to pay $210 in attorney fees reversed; otherwise affirmed.
Notes
Under ORS 137.372(1)(b), a person “who has been revoked from a probationary sentence for a felony committed on or after November 1, 1989, and whose sentence was imposed as a presumptive probationary sentence * * * shall receive credit for the time served in jail after arrest and before commencement of the probationary sentence *** unless the sentencing judge orders otherwise.”
ORS 137.030(1) provides that “the defendant shall be personally present” for “the purpose of giving judgment” on a felony conviction.