FILED: July 10, 2002

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STEVE HINDMAN,

Appellant,

v.

ROBERT LAMPERT,
Superintendent,
Snake River Correctional Institution,

Respondent.

99-11-30957M; A113444

Appeal from Circuit Court, Malheur County.

F. J. Yraguen, Judge.

Argued and Submitted May 22, 2002, Enterprise.

Bob Pangburn argued the cause for appellant. With him on the briefs was Rebecca Neal-Richardson.

Kaye E. McDonald, Assistant Attorney General, argued the cause for respondent. With her on the briefs were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Edmonds, Presiding Judge, and Armstrong and Kistler, Judges.

PER CURIAM

Affirmed.

PER CURIAM

Petitioner appeals from a judgment denying his petition for post-conviction relief and awarding the State of Oregon a judgment for costs and for the attorney fees that it paid to petitioner's counsel. We affirm on the merits of his post-conviction claim without discussion. Petitioner also argues that the trial court failed to make any determination concerning his ability to pay the attorney fees and costs, as Bacote v. Johnson, 333 Or 28, 35 P3d 1019 (2001) requires. Petitioner did not make that argument below, even to the extent that the petitioner did in Bacote. Assuming that the trial court's action was error apparent on the face of the record, which we do not decide, we perceive no reason to exercise our discretion to consider the issue. ORAP 5.45.

Affirmed.


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