State v. Harry

457 P.3d 1119, 302 Or. App. 361

• Court: Court of Appeals of Oregon
• Decided: February 20, 2020
• Docket: A167756
• Status: Published

Opinion

Submitted January 30; remanded for resentencing, otherwise affirmed February 20, 2020

STATE OF OREGON, Plaintiff-Respondent, v. KESTER GORDON HARRY, Defendant-Appellant. Polk County Circuit Court 17CR07025; A167756 457 P3d 1119

Rafael A. Caso, Judge pro tempore. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Meredith Allen, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Julie Glick, Assistant Attorney General, filed the brief for respondent. Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge. PER CURIAM Remanded for resentencing; otherwise affirmed. 362 State v. Harry

PER CURIAM Defendant appeals a judgment of conviction for second-degree manslaughter, ORS 163.125. He argues that the trial court made various errors at trial, and also erred in imposing restitution in the amount of $101,095.04 payable to SAIF Corporation. We reject all of defendant’s assignments of error without discussion except the one concerning restitu- tion. As for restitution, defendant did not preserve his claim of error but argues that the court plainly erred in imposing restitution because the state failed to provide any evidence to support an award of restitution to SAIF Corporation. The state concedes that the trial court plainly erred in that regard. We agree and accept the concession. We exercise our discretion to correct the error for the reasons set forth in State v. Martinez, 250 Or App 342, 344, 280 P3d 399 (2012) (“The amount of restitution is not insubstantial given defen- dant’s circumstances; moreover, the interests of justice mili- tate against requiring a defendant to pay an obligation that is totally unsubstantiated by the record.”). Remanded for resentencing; otherwise affirmed.