State v. Gallegos

                                        145

 Argued and submitted July 12, 2019, affirmed February 5, petition for review
                   dismissed April 28, 2020 (

)


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                     ARMANDO GALLEGOS,
                       Defendant-Appellant.
                  Washington County Circuit Court
                       16CR27405; A166485
                                    

     In this criminal case, defendant challenges the imposition of over $1 million
in restitution after he pleaded guilty to one count of first-degree manslaughter,
ORS 163.118, two counts of second-degree assault, ORS 163.175, and one count
of driving under the influence of intoxicants, ORS 813.010. Defendant asserts
(1) that the trial court erred by determining that there was “good cause” to impose
restitution beyond the 90-day deadline established by ORS 137.106(1)(a); and
(2) that the trial court committed plain error by failing to follow, in the absence of
“good cause,” the procedural requirements for crime victims to assert their constitutional rights set forth in ORS 147.500 to 147.550. In response, the state concedes that the trial court erred in concluding that “good cause” existed to excuse
the 90-day statutory deadline, but nevertheless argues that the trial court did
not plainly err because, consistent with prior cases, the trial court had authority to impose restitution under Article I, section 42, of the Oregon Constitution.
Held: In light of the competing arguments offered by defendant and the state,
the alleged error is not “obvious” for purposes of the plain-error requirements;
accordingly, the trial court did not plainly err in imposing restitution after 90
days.
    Affirmed.



    Eric Butterfield, Judge.
   Mary M. Reese, Deputy Public Defender, argued the
cause for Appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Gregory A. Rios, Assistant Attorney General, argued
the cause for Respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Landau, Senior Judge.
146            State v. Gallegos

  POWERS, J.
  Affirmed.
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 (2020)                                                147

           POWERS, J.
         In this criminal case, defendant challenges the
imposition of over $1 million in restitution after he pleaded
guilty to one count of manslaughter in the first degree, ORS
163.118, two counts of assault in the second degree, ORS
163.175, and one count of driving under the influence of
intoxicants (DUII), ORS 813.010, resulting from a head-on
collision on Highway 26. Defendant asserts (1) that the trial
court erred by determining that there was “good cause” to
impose restitution beyond the 90-day deadline established
by ORS 137.106(1)(a); and (2) that the trial court committed plain error by failing to follow, in the absence of “good
cause,” the procedural requirements for crime victims to
assert their constitutional rights set forth in ORS 147.500 to
147.550. In response, the state concedes that the trial court
erred in concluding that “good cause” existed to excuse the
delay past the 90-day statutory deadline but nevertheless
argues that we should affirm the trial court’s imposition of
restitution. In the state’s view, the trial court’s failure to follow the procedures outlined in ORS 147.500 to 147.550 does
not constitute plain error and, even if the trial court did
plainly err, we should decline to exercise our discretion to
correct that error. As explained below, we conclude that the
trial court did not plainly err, and, accordingly, we affirm.
         The relevant facts are procedural and undisputed.
After waiving his right to a jury trial and pleading guilty,
defendant was sentenced on January 26, 2017, and a judgment of conviction was entered on March 7, 2017. At the
sentencing hearing, the state asked the trial court to leave
restitution open for 90 days, which the court granted. The
state, however, neglected to request a restitution hearing
within the 90-day statutory deadline prescribed by ORS
137.106(1)(a), later explaining that it was, in part, because
of the termination of a staff member assigned to handle restitution issues.1

    1
      ORS 137.106(1)(a) provides, in part, “When a person is convicted of a crime,
or a violation as described in ORS 153.008, that has resulted in economic damages, the district attorney shall investigate and present to the court, at the time
of sentencing or within 90 days after entry of the judgment, evidence of the
nature and amount of the damages. The court may extend the time by which the
presentation must be made for good cause.”
148                                                        State v. Gallegos

         On August 31, 2017, the state filed a motion requesting a restitution hearing. In its motion, the state acknowledged that “[t]he district attorney’s office [was] solely responsible for the failure to make a timely restitution request
on the [victims’] behalf,” but asked the court to grant its
request to “honor the [victims’] right to receive restitution.”
         The trial court granted the state’s motion and held a
restitution hearing on November 1, 2017. At the hearing, the
state asserted that, despite the untimely request, the victims
have a constitutional right to restitution under Article I,
section 42(1)(d), of the Oregon Constitution.2 Emphasizing
that it was seeking restitution “on behalf of [the] victims,”
the state argued that, under State v. Thompson, 

, 

, rev den, 

 (2013), and State v.
Wagoner, 

, 

 (2013), the trial court
had constitutional authority to impose restitution beyond
the 90-day deadline. In response, defendant argued that
according to State v. Aguilar-Ramos, 

, 

 (2017), and State v. Biscotti, 

, 

 (2008), a trial court could extend the 90-day deadline
only for “good cause” and that the state’s inadvertence and
carelessness could not constitute “good cause.”
         The trial court concluded that, despite the state
being “the sole catalyst of the delay,” “good cause” existed
“because it would be fundamentally unfair for the victims to
suffer because of an error for which they did not contribute
or cause.” Thus, the trial court entered a supplemental judgment ordering defendant to pay $1,061,747.45 in restitution
to the victims.
         On appeal, defendant reasserts his argument that
the state failed to establish “good cause” as required by
ORS 137.106(1)(a). In addition, defendant contends that,
although “Thompson and Wagoner identified Article I, section 42[,] as the authority authorizing the court to remedy
the violation of the victim’s right” to restitution, a trial court
must follow the procedural steps outlined by the legislature
in ORS 147.500 to 147.550 before it can order restitution.
    2
      Article I, section 42(1)(d), of the Oregon Constitution provides a crime victim with “[t]he right to receive prompt restitution from the convicted criminal
who caused the victim’s loss or injury.”
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Defendant readily acknowledges, however, that he did not
raise the latter argument before the trial court. He first
argues that preservation is not needed when a trial court
“exceeds its sentencing authority,” citing State v. Cook, 

, 

 (1991), rev den, 

(1992) (“If a sentencing court exceeds its statutory authority in imposing a specific sentence, that is an ‘error of law’
that may be addressed without an objection to the sentencing court.”), and alternatively, he asks for plain-error
review.
         In response, the state concedes that, under Biscotti
and the circumstances in this case, the trial court erred in
concluding that “good cause” existed. Nevertheless, the state
asserts that the court still had authority under Article I, section 42, as articulated by Thompson and Wagoner, to impose
restitution after 90 days. The state also remonstrates that
the failure to follow the statutory procedures set forth in
ORS 147.500 to 147.550 is not plain error because such a
requirement is neither “obvious” nor “apparent.”
         Although we accept the state’s concession that the
trial court erred in concluding that there was “good cause,”3
we also agree with the state’s position that Thompson and
Wagoner authorize a trial court to order restitution beyond
the 90-day deadline to remedy the violation of a victim’s constitutional right. See Thompson, 257 Or App at 342 (noting
that the right of a victim to receive restitution “is created
by the Oregon Constitution. That is, the right of a victim to
receive compensation is not ‘purely statutory’ because the
statutory scheme itself does not create the right of a victim
to receive prompt restitution.”). In so concluding, we do not
understand defendant’s argument to challenge Thompson
and Wagoner directly; rather, the issue raised by defendant’s
second argument is whether a court errs, in the absence of
good cause, by ordering restitution beyond the 90-day statutory deadline without following the procedures outlined in
ORS 147.500 to 147.550.

    3
      Our recent decision in State v. Taylor, 

, 

(2019), determining that “the focus of the good cause inquiry … is on what has
caused the district attorney’s delay in presenting evidence,” further supports the
conclusion that “good cause” did not exist in this case.
150                                             State v. Gallegos

        As an initial matter, we recently rejected a contention similar to defendant’s argument that preservation is
not required when a court exceeds its sentencing authority.
In State v. Waldron, 

, 

 (2019),
the defendant relied on Cook and State v. Farmer, 

, 

 (1993), to make that argument. We
explained:
   “To the extent defendant suggests that our decision in Cook
   creates an exception to ordinary preservation principles or
   alters the requirements for plain-error review under ORAP
   5.45 when a sentencing court exceeds its statutory authority, he is incorrect. See Farmer, 

 n 4 (observing
   that our statement in Cook about the need for an objection
   is not true as a categorical statement of the law because
   it does not take full account of the requirement of ORAP
   5.45(2) as interpreted in State v. Brown, 

,
   

 (1990), that the error of law must be apparent,
   meaning obvious, not reasonably in dispute).”

Waldron, 

 n 1 (internal quotation marks
omitted). For the same reasons, we reject defendant’s assertion that preservation is not required in this case.
         Turning to defendant’s alternative argument, when
a party fails to preserve a claim of error, we have discretionary authority to review whether the trial court committed
plain error. ORAP 5.45(1); Ailes v. Portland Meadows, Inc.,

, 

 (1991). Plain error is an error
that is (1) one of law; (2) obvious, i.e., not reasonably in dispute; and (3) apparent on the record. State v. Vanornum, 

, 

 (2013). If the plain-error test is
satisfied, we must then determine whether to exercise our
discretion to review the error. 

 (“That discretion
entails making a prudential call that takes into account an
array of considerations, such as the competing interests of
the parties, the nature of the case, the gravity of the error,
and the ends of justice in the particular case.”).
         Here, defendant’s claim of error does not qualify
as plain error because it is not obvious or beyond reasonable dispute. On the contrary, our cases have not addressed
whether, in the absence of “good cause,” the state must follow the statutory procedures outlined in ORS 147.500 to
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147.550, before a court can order restitution.4 Further, both
parties advance reasonable competing arguments on that
issue.
         Defendant does not contest that a victim has “[t]he
right to receive prompt restitution” under the Oregon
Constitution. Or Const, Art I, § 42(1)(d). Rather, defendant
argues that, because Article I, section 42(3)(c) authorizes
the legislature to effectuate a victim’s constitutional right,
the trial court must follow “the procedural path outlined
in ORS 147.500 to 147.550” when ordering restitution after
the 90-day deadline. See Or Const, Art I, § 42(3)(c) (“The
Legislative Assembly may provide by law for further effectuation of the provisions of this subsection ….”). Specifically,
defendant argues that the state in this case failed to properly assert a claim because under ORS 147.500 to 147.550
    “a victim who wishes to allege a violation of a right granted
    by Article I, section 42, must inform the court within 30
    days of the date the victim knew, or reasonably should
    have known, of the facts supporting the allegation. ORS
    147.515(1). The victim then must describe those facts and
    propose a remedy. Id. If the trial court deems the victim’s
    claim to be facially valid, it must issue an order to ‘show
    cause why the victim should not be granted relief,’ ORS
    147.517(2), and may hold a hearing on the victim’s claim,
    ORS 147.530(1). At the conclusion of that hearing, the trial
    court must issue an order granting or denying the relief
    requested. ORS 147.530(4). A party not satisfied with the
    court’s order may seek review in this court pursuant to
    ORS 147.535, 147.537, and 147.539.”
State v. Algeo, 

, 

 (2013). Thus,
defendant submits that, because the state and the trial
court did not follow the steps articulated in ORS 147.500 to
147.550, the trial court did not have authority, absent good
cause, to order restitution beyond the 90-day deadline.

    4
      Our cases addressing the imposition of restitution beyond the 90-day
statutory time limit either (1) discuss “good cause” and make no mention of the
constitutional authority to award restitution, or (2) discuss the constitutional
authority, but make no mention of the need for “good cause.” Compare Taylor,
Aguilar-Ramos, and Biscotti, which discuss the former, with Thompson and
Wagoner, which discuss the latter. None of these cases, however, address the relationship, if any, between the requirements set forth in ORS 147.500 to 147.550
and the constitutional authority described in Thompson and Wagoner.
152                                             State v. Gallegos

         The state, as noted earlier, asserts that, “regardless of whether the prosecutor used the statutorily prescribed procedures for making a rights-violation claim,”
under Thompson and Wagoner, “a trial court has authority
to impose restitution under Article I, section 42(1)(d) after
ORS 137.106’s 90-day restitution deadline has expired.”
Additionally, the state points to ORS 147.504, which provides, in part:
      “(2)   Nothing in ORS 147.500 to 147.550:
      “(a) Affects the authority granted by law to the prosecuting attorney to assert the public’s interest, including but
   not limited to:
      “(A)   Asserting rights granted to victims by law; and
      “(B) Investigating and presenting to the court evidence relating to restitution.”
Thus, according to the state, ORS 147.504(2)(a) “evinces
a legislative intent to permit prosecutors to assert a victim’s constitutional rights—particularly those relevant to
restitution—outside of the prescribed procedures.”
         In light of these competing arguments and the lack
of case law to support defendant’s assertion, we cannot conclude that defendant’s alleged error is “obvious”; rather, the
competing arguments offered by defendant and the state
demonstrate that defendant’s alleged error is reasonably
in dispute, which has the effect of precluding plain-error
review. See State v. Reyes-Camarena, 

, 

 (2000) (holding that the alleged error was not plain, in
part, because “[n]o Oregon appellate court ha[d] considered
the issue, let alone held that defendant’s position [was] correct”). Therefore, the trial court did not plainly err in ordering restitution beyond the 90 days; and, accordingly, we
affirm the judgment of the trial court.
         Affirmed.