State v. Shepherd

                                   118

Submitted November 26, 2019, affirmed January 29, petition for review denied
                        June 4, 2020 (

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                 MICKEY ALLEN SHEPHERD,
                      Defendant-Appellant.
                 Josephine County Circuit Court
                      15CR19170; A167327
                                

   Thomas M. Hull, Judge.
    Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah De La Cruz, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant. Mickey Allen Shepherd filed the supplemental brief pro
se.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna L. Jenkins, Assistant Attorney
General, filed the briefs for respondent.
   Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Sercombe, Senior Judge.
   PER CURIAM
   Affirmed.
   Aoyagi, J., concurring.
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           PER CURIAM
         Defendant was convicted of driving under the influence of intoxicants (DUII), ORS 813.010, a Class A misdemeanor, and ordered to pay a $1,255 DUII fine as part of
his sentence. See ORS 813.010(6) (providing for a minimum
fine of $1,000 for a person’s first conviction of DUII); ORS
161.635(1)(a) (generally providing for a maximum fine of
$6,250 for a Class A misdemeanor); ORS 813.010(7) (increasing the maximum fine for a DUII conviction to $10,000 in
certain circumstances).1 On appeal, defendant challenges
the imposition of the fine.2 He argues that, under ORS
161.645, the trial court was required to consider his financial resources and the burden that payment of the fine would
impose on him, before imposing the fine, and that the court
plainly erred by failing to do so. We affirm.
         Defendant’s argument hinges on ORS 161.645, a
general provision of the criminal code. That statute provides that, “[i]n determining whether to impose a fine and
its amount, the court shall consider … [t]he financial
resources of the defendant and the burden that payment of
a fine will impose, with due regard to the other obligations
of the defendant,” as well as “[t]he ability of the defendant to
pay a fine on an installment basis or on other conditions to
be fixed by the court.” ORS 161.645 (emphasis added).
         Defendant acknowledges that he did not preserve
the claim of error but argues that we may nonetheless
reverse because the trial court committed “plain error” in
imposing the fine without considering the factors identified
in ORS 161.645. See ORAP 5.45(1) (limiting review to claims
of error that were preserved in the lower court, except that
“the appellate court may, in its discretion, consider a plain
error”).

    1
      Based on its oral statements at sentencing, it appears that the trial court
may have intended to impose a $1,000 fine under ORS 813.010(6) and a $255 fee
under ORS 813.020(1)(a). See ORS 813.020(1)(a) (providing, by cross reference to
ORS 813.030, for a $255 fee when a person is convicted of DUII). However, the
judgment imposes a $1,255 “Fine - DUII.” We rely on the judgment in describing
the fine.
    2
      Defendant’s opening brief contains a single assignment of error, challenging the fine. Defendant also filed a supplemental pro se brief, containing additional arguments, which we reject without written discussion.
120                                                    State v. Shepherd

         An alleged error is susceptible to plain-error review
only if it is an error of law; is “obvious, not reasonably in
dispute”; and appears on the record. State v. Corkill, 

, 

, rev den, 

 (2014). In
this case, even assuming that ORS 161.645 applies, defendant’s argument for plain-error review is foreclosed by State
v. Wheeler, 

, 

 (2015); State
v. Smith, 

, 

 (2015), rev den,

 (2016); and State v. Manoff, 

,

 (2019). In each of those cases, the defendant
was ordered to pay a fine and, on appeal, argued that it was
plain error to impose the fine when the record contained
no evidence about his financial resources. Manoff, 

; Smith, 

; Wheeler, 

. And, in each of those cases, we rejected the
defendant’s argument, concluding that the alleged error
was not susceptible to plain-error review because any error
was not apparent on the record. Manoff, 

;
Smith, 

; Wheeler, 

.
Accordingly, we affirm.
           Affirmed.
           AOYAGI, J., concurring.
         I agree with the majority that Wheeler, Smith, and
Manoff foreclose any possibility of plain-error review in this
case. Because defendant has not asked us to overrule those
precedents, or distinguished them, the majority’s disposition is necessarily correct. See Farmers Ins. Co. v. Mowry,

, 

 (2011) (“[W]e begin with the
assumption that issues considered in our prior cases are correctly decided, and the party seeking to change a precedent
must assume responsibility for affirmatively persuading us
that we should abandon that precedent.” (Internal quotation
marks omitted.)); Beall Transport Equipment Co. v. Southern
Pacific, 

, 700 n 2, 

, adh’d to on
recons, 

, 

 (2003) (stating that it is
not our “proper function to make or develop a party’s argument”). I write separately, however, to acknowledge what I
believe to be a logical flaw in that precedent.1
    1
      It is worth reiterating that, in this case, the trial court imposed a fine
greater than the mandatory minimum DUII fine. See 302 Or App at 119 & n 1.
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         In State v. Wheeler, the defendant was convicted of
multiple crimes, ordered to pay $36,000 in court-appointed
attorney fees and an “indigent contribution,” and ordered to
pay a $24,327 fine. 

, 

 (2015).
On plain-error review, we reversed the order as to the attorney fees and indigent contribution, because the applicable
statutes required a predicate finding that the defendant “ ‘is
or may be able to pay,’ ” and “the record contain[ed] no evidence that defendant ha[d] the financial resources to enable
him to pay the fees.” 

 (quoting ORS 151.505(3) and ORS
161.665(4)). However, we affirmed as to the fine, stating
that that issue was “not susceptible to plain-error review,”
because ORS 161.645 only required the court to “consider”
defendant’s ability to pay, and “the record does not establish
that the court failed to do that.” 

 (emphasis in
original).
        Later the same year, we relied on Wheeler to reach
the same result in State v. Smith, 

, 

 (2015), rev den, 

 (2016). In Smith, the defendant was convicted of unlawful use of a weapon and ordered
to pay a $1,500 fine. 

. Citing Wheeler, we rejected
the defendant’s plain-error challenge to the fine on appeal,
concluding that the issue “[w]as not susceptible to plain-error review,” because, although the record “contain[ed] no
evidence that defendant ha[d] the financial resources to
enable him to pay the fine,” it also “d[id] not establish that
the court failed to consider defendant’s ability to pay.” 

 (emphasis in original).
         Most recently, in State v. Manoff, 

,

 (2019), the defendant was convicted of property
crimes, ordered to pay $600 in fines, and on appeal raised
a plain-error challenge to the fines, because “the record
lack[ed] any evidence that he ha[d] the ability to pay the
fines.” 

. Relying on Wheeler and Smith, we again
There is tenable argument that ORS 161.645 does not apply when a trial court
imposes the mandatory minimum DUII fine under ORS 813.010, given differences
between ORS 137.286 (regarding mandatory minimum fines generally) and ORS
813.010 (regarding mandatory minimum DUII fines). Thus, if the trial court had
imposed the mandatory minimum DUII fine on defendant, there would be an
additional reason that any error was not plain. Because it imposed a greater fine,
however, it is appropriate to assume that ORS 161.645 applies and focus on the
state’s argument under Wheeler and its progeny.
122                                         State v. Shepherd

noted that ORS 161.645 only requires the trial court to “consider” a defendant’s financial resources, and we concluded
that the record “d[id] not establish that the court failed to do
that,” so any legal error was “not apparent on the record.” 

         In his briefing on appeal, defendant does not offer
any basis to distinguish Wheeler, Smith, or Manoff, nor does
he ask us to overrule that line of cases. We will overrule
existing precedent only if it is “plainly wrong”—“a rigorous
standard grounded in presumptive fidelity to stare decisis,”
State v. Civil, 

, 

 (2017)—
and typically only when requested. Farmers Ins. Co., 

. For both of those reasons, I agree with the majority
that we should affirm in this case.
         At the same time, defendant’s arguments call attention to an apparent logical flaw in Wheeler and its progeny
that I believe warrants acknowledgement. Specifically, I
agree with defendant that, if the record establishes that,
at the time of sentencing, the trial court had no information regarding a defendant’s financial resources and the
burden that payment of a fine would impose—as defendant
contends was the case here—the alleged error in imposing
a fine is apparent on the record. See State v. Corkill, 

, 

, rev den, 

 (2014)
(one of the requirements for plain-error review is that the
error “appears on the face of the record”). Put simply, a court
cannot consider information that it does not have. Thus, I
disagree with our existing precedent to the extent that it
holds that, when a trial court has no information relevant
to the factors in ORS 161.645, it is not apparent from the
record whether the court nonetheless considered those factors before imposing the fine. See Manoff, 

;
Smith, 

; Wheeler, 

.
In my view, if the court did not have the information, it is
apparent that it did not consider it.
         Of course, it is a separate question whether imposing a fine in the absence of the information identified in
ORS 161.645—when defendant has not provided that
information—is a legal error that is “obvious, not reasonably in dispute.” Corkill, 

. And, if so, it is
another separate question whether we should exercise our
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discretion to correct the error in any given case. There is
good reason to approach plain-error review cautiously. State
v. Burris, 

, 

 (2019). But we
will never reach those questions or have the opportunity to
exercise our discretion if, every time a criminal defendant
makes a plain-error challenge to the imposition of a fine
on a record silent as to his or her financial circumstances,
we summarily reject the defendant’s argument on the basis
that the alleged error does not “appear on the record.”
        Fines are imposed in a vast number of criminal
cases and, even if small, can be very burdensome to indigent defendants. That is not to say that fines should not
be imposed or to question the broad discretion that trial
courts have under ORS 161.645. But it is to say that ORS
161.645, when applicable, requires trial courts to consider
a defendant’s financial circumstances, and the court cannot
do that unless it has the information to do so. Given that
our current case law essentially creates a complete bar to
plain-error review of the type of error alleged in this case, I
respectfully write separately to draw attention to the issue.
As to the disposition, however, I concur.