State v. King

364 P.3d 17, 275 Or. App. 99, 2015 Ore. App. LEXIS 1420
Court of Appeals of Oregon·Decided December 2, 2015·No. 13C41906; A155697·Published

Opinion

DEVORE, J.

In this criminal case, defendant challenges the trial court’s restitution award under ORS 137.106(l)(b) (2012).1 She contends that the trial court erred in awarding restitution in an amended judgment after entry of the original judgment because the court did not determine that there was “good cause” to exceed the 90-day period for determining the amount of restitution, and, alternatively, because the record is insufficient to support a “good cause” ruling. The state concedes that the trial court erred in its imposition of restitution because it issued an amended judgment more than 90 days after the original judgment was entered.

The only issue on appeal is the proper disposition of the case. Defendant urges us to reverse the amended judgment imposing restitution.2 The state urges us to vacate the amended judgment for restitution and remand for resentencing. The state contends that, even if the trial [102] court lacked authority to impose restitution on remand, the court could still impose a different “sentence package,” so a remand for resentencing would be more appropriate. We review sentencing decisions, including restitution orders, for legal error. State v. Beckham, 253 Or App 609, 612, 292 P3d 611 (2012). We reverse the trial court’s amended judgment and remand for resentencing.

The few relevant facts are undisputed and primarily procedural. On March 31, 2013, defendant was arrested and charged with a number of criminal offenses. Among other things, defendant had poured gasoline throughout her boyfriend’s residence and threatened to light it on fire. On May 28, 2013, defendant pleaded guilty to three felony offenses — fourth-degree assault, attempted first-degree arson, and first-degree criminal mischief.3 That day, the court entered a judgment sentencing defendant to serve 14 months in prison for fourth-degree assault, 40 months in prison for attempted arson to run concurrently, and 17 months in prison for first-degree criminal mischief to run consecutively. The court also imposed post-prison supervision and included a $200 fine for each offense. See ORS 137.286(2) (providing that “the minimum fine for a felony is $200”).

On October 9, 2013, the trial court held a restitution hearing. The owner of the boyfriend’s home testified that the home had required a number of repairs as a result of the spilled gasoline, that she had made an insurance claim for the repairs, and that she had paid the uninsured $1,000 deductible portion of the loss. The court admitted as evidence a report detailing the cost of repairs prepared by the homeowner’s insurance company. The state did not call a witness from the insurance company.

Defendant contended that it was “too late for the state to request the restitution,” that the trial court would be required to make a good cause determination to permit [103] the imposition of restitution after 90 days of the original judgment under ORS 137.106(1), and that “there was no good cause in this case.” She emphasized that the state had not provided the court with any argument as to “what the good cause would be.”

The state conceded that the statutory period had passed but argued that “it’s up to the court’s discretion as to whether or not to allow an extension.” The state explained that “there was some difficulty getting a hold of the insurance company to finally get this report,” and suggested that the trial court consider “whether or not the defendant is prejudiced” by the delay in an award for restitution.

Agreeing that it should consider the issue as a matter of prejudice to defendant, the court ruled that it would award restitution. The court declared that a belated award did not “rise to the level of a constitutional violation” and was not “prejudicial to the defendant.” The court did not address defendant’s argument that a finding of “good cause” was needed. The court amended the judgment by adding a restitution award totaling $7,953.86.4

On appeal, defendant contends, and the state concedes, that, under ORS 137.106, the trial court was required to issue a supplemental judgment ordering defendant to pay restitution within 90 days of the entry of the original judgment, unless good cause existed to extend the trial court’s restitution determination and completion of the supplemental judgment. ORS 137.106(1)(b). The state also concedes that, “if the court implicitly found that ‘good cause’ existed to do so, the court did not make a record to permit appellate review of that conclusion.” We agree and accept the state’s concession. See, e.g., Beckham, 253 Or App at 612-13 (accepting the state’s concession that the trial court erred in entering a supplemental judgment for restitution after 90 days of the original judgment).

As noted, the parties disagree what the proper disposition of the case should be. Defendant asserts that the proper disposition in this case is simply to reverse the [104] imposition of restitution. The state asserts that the proper disposition is to “affirm defendant’s conviction, vacate the judgment, and remand the entire case for resentencing.” The state makes two arguments in support of its position. First, the state argues that the trial court “may have authority to impose restitution,” by determining later that good cause existed at the time of the amended judgment to impose restitution outside of the 90-day period. Second, even if the trial court did not have authority to impose restitution because no good cause existed, the state argues that a proper disposition is a remand for resentencing because “other lawful sentencing options are available.” We consider each of those arguments in turn.

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State v. King, 364 P.3d 17, 275 Or. App. 99, 2015 Ore. App. LEXIS 1420 (Or. Ct. App. 2015).

364 P.3d 17 (State v. King) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.

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