State v. Garlitz

404 P.3d 1090, 287 Or. App. 372, 2017 WL 3611569, 2017 Ore. App. LEXIS 1006
CourtCourt of Appeals of Oregon
DecidedAugust 23, 2017
DocketC132441CR; A158866
StatusPublished
Cited by6 cases

This text of 404 P.3d 1090 (State v. Garlitz) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Garlitz, 404 P.3d 1090, 287 Or. App. 372, 2017 WL 3611569, 2017 Ore. App. LEXIS 1006 (Or. Ct. App. 2017).

Opinion

LAGESEN, J.

For her financial abuse of an elderly man and her fraudulent use of bank cards that she obtained under his name, defendant pleaded guilty to one count of aggravated identity theft, ORS 165.803, and one count of first-degree criminal mistreatment, ORS 163.205. The trial court sentenced her to pay a compensatory fine in the amount of $156,565.82 and to a term of incarceration and other monetary obligations. On appeal, defendant assigns error to the trial court’s imposition of the compensatory fine. She argues that the trial court erred in imposing a compensatory fine for losses incurred outside the time period covered by her guilty plea, and in imposing a fine that exceeds the statutory maximum fine for first-degree criminal mistreatment. We review for legal error, State v. Neese, 229 Or App 182, 184, 210 P3d 933 (2009), rev den, 347 Or 718 (2010), and affirm.

The relevant facts are largely procedural and not disputed on appeal. As the state explained at defendant’s plea hearing, the factual basis for defendant’s plea is as follows. In late 2011, defendant, along with codefendant Kelly Dresser, approached O, an elderly man with dementia, in a Fred Meyer parking lot after witnessing him looking for his car. Defendant and Dresser obtained O’s phone number and became friendly with him. They eventually moved into his home and took over his care, including payment of his bills. They also began to use his money for their own purposes, filling out and cashing his checks—some of which O signed, and some of which defendant and Dresser forged. Defendant and Dresser also obtained and used bank cards under O’s name, without his understanding or consent. In all, defendant and Dresser amassed $156,565.82 in debt in O’s name. He lost $110,130.91 personally, and four different banks reported the remainder as losses that they had written off as resulting from fraud. Defendant and Dresser’s appropriation of O’s money and identification began around October 2011, and ended in October 2013 when they were arrested and each charged with one count of criminal mistreatment in the first degree, one count of aggravated theft in the first degree, and two counts of aggravated identity theft.

[375]*375Thereafter, defendant entered a plea agreement under which she agreed to plead guilty to two of the charges: criminal mistreatment (Count 1), a Class C felony, and aggravated identity theft (Count 4), a Class B felony. The parties stipulated to concurrent sentences of six months’ and 15 months’ imprisonment for those charges, respectively. Defendant initially was sentenced to pay two $200 fines, one for each count, and the trial court indicated that those financial obligations would increase after a later hearing at which the court would ascertain the economic losses sustained by O and the banks affected by defendant’s conduct, so that such amounts could be imposed as a compensatory fine under the mechanism provided by ORS 137.101(1).1 In exchange for defendant’s plea, the state agreed to dismiss the remaining counts and not charge defendant for additional thefts arising out of her relationship with O.

After the subsequent hearing, the court issued a letter opinion in which it found that the conduct of defendant [376]*376and Dresser had caused losses to O and various banks in the amount, of $156,565.82, and entered a supplemental judgment stating that defendant was jointly and severally liable with Dresser for a compensatory fine in the amount of $156,565.82. Neither the court’s letter opinion nor the supplemental judgment identify on which of defendant’s two convictions the trial court intended to impose the fine; however, the case register indicates that the fine was assigned to defendant’s conviction on Count 1 for criminal mistreatment, a Class C felony for which the maximum fine authorized by ORS 161.625(d) is $125,000.2

Defendant appeals, challenging the compensatory fine on two grounds. In her first assignment of error, she argues that the trial court erred in awarding a compensatory fine exceeding the damages incurred by O and the banks within the date range set out by her guilty plea. Specifically, she contends that the fine imposed was in excess of that which is permissible, because not all of the fine amount stemmed from the conduct to which defendant admitted when she entered her guilty pleas. In other words, in defendant’s view, a fine designated as compensatory cannot exceed the economic losses in fact caused by the specific conduct to which defendant admitted. In her second assignment of error, defendant contends that the court plainly erred by imposing a compensatory fine on Count 1 that exceeds the statutory maximum fine permitted for a Class C felony.

Defendant’s first assignment of error misapprehends the operation of the compensatory fine statute. Under ORS 161.625, a sentencing court is authorized to impose a fine upon a defendant as penalty for the commission of classified felonies. ORS 137.101, in turn, authorizes a sentencing court to direct that some or all of that fine money be [377]*377used to compensate the victims of the defendant’s crimes if those victims have suffered damages for which they would have a civil action against the defendant as a result of those crimes. State v. Moore, 239 Or App 30, 34, 243 P3d 151 (2010) (explaining that ORS 137.101 “does not itself authorize a court to impose a fine, compensatory or otherwise!,]” but simply authorizes the court to “order the state to share a portion of any fine that the court imposes with the victim or victims of the crime of conviction”).

In other words, ORS 137.101 is simply a distribution mechanism that permits a sentencing court to redirect money, which ordinarily would be paid to the state, to certain private parties. Although a sentencing court’s authority to redirect that money is not unlimited, the amount of the compensatory fine need not be calibrated to—or limited to— the economic damages3 sustained by the victim: “The statute does not tie the amount of the compensatory fine to the amount of economic damages that a victim has suffered.” State v. Grismore, 283 Or App 71, 76, 388 P3d 1144 (2016) (emphasis in original). Rather, as we explained in Grismore,

“[t]he only requirements that must be met for a trial court to impose a compensatory fine are that the injured victim have a remedy by civil action for the injuries that he or she suffered as a result of defendant’s crime and that punitive damages have not been previously decided in a civil case arising out of the same act and transaction.”

Id. (internal quotation marks omitted).

Here, those minimal requirements were met.

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Cite This Page — Counsel Stack

Bluebook (online)
404 P.3d 1090, 287 Or. App. 372, 2017 WL 3611569, 2017 Ore. App. LEXIS 1006, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-garlitz-orctapp-2017.