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.