State v. Dennis

                                      595

 Argued and submitted February 28; in A169176, remanded for resentencing,
          otherwise affirmed; in A172819, affirmed April 15, 2020


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    ROBERT EDWARD DENNIS,
                        Defendant-Appellant.
                     Linn County Circuit Court
                            17CR03409;
                     A169176 (Control), A172819
                                  

    Defendant was convicted of driving under the influence of intoxicants and
driving while suspended. At his sentencing hearing, the trial court told defendant that it would impose 36 months of probation with a number of conditions.
The trial court then entered a written judgment, which, in addition to imposing the sentence and probation terms described at the sentencing hearing, also
required, for the first time, that defendant pay three particular fees. Defendant
appeals, assigning error to the imposition of the three fees outside his presence.
Held: The trial court erred in imposing the three fees for the first time in the
written judgment. At least one of those errors was not harmless, so resentencing
is necessary.
     In A169176, remanded for resentencing; otherwise affirmed. In A172819,
affirmed.



    DeAnn L. Novotny, Judge.
   Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Jennifer S. Lloyd, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
    AOYAGI, J.
   In A169176, remanded for resentencing; otherwise affirmed.
In A172819, affirmed.
596                                          State v. Dennis

        AOYAGI, J.
         Defendant was convicted of misdemeanor driving
under the influence of intoxicants, ORS 813.010, and driving
while suspended, ORS 811.175. At defendant’s sentencing
hearing, the trial court told defendant that it would impose
36 months of probation with a number of conditions, including, as relevant here, that defendant “report to court monitoring services,” “attend a victim impact panel,” and “have a
mandatory alcohol evaluation and participate [in] and complete any treatment that’s recommended.” The trial court
also told defendant that it was imposing a $2,000 “minimum fine” under ORS 813.010(6)(c) and a $255 DUII fee
under ORS 813.030 but that it was not imposing attorney
fees.
         The trial court entered a written judgment in
September 2018 that reflected the foregoing sentencing
provisions but also imposed special conditions of probation
requiring defendant to pay three fees that it had not mentioned at his sentencing hearing: (1) “the monitoring fee”
associated with court monitoring services, (2) “the fee” associated with the victim impact panel, and (3) a “$150.00 evaluation fee” associated with the substance abuse evaluation.
Defendant appeals the September 2018 judgment, assigning error to the imposition of those three fees outside his
presence.
         A criminal defendant has a right to be present at
sentencing. State v. Baccaro, 

, 

 (2019). We have repeatedly held that a trial court errs
when it imposes fines or fees in a written judgment that it
did not pronounce at sentencing. E.g., 

 (written judgment
imposed $100 fee not pronounced in the defendant’s presence); State v. Coghill, 

, 819, 

(2019) (written judgment imposed $255 fee not pronounced in
the defendant’s presence); State v. Broyles, 

, 

 (2019) (written judgment imposed larger
fine than pronounced in the defendant’s presence); State v.
Brooks, 

, 

, rev den, 

(2017) (written judgment imposed $25 assessments not pronounced in the defendant’s presence); State v. Kasper, 

, 

 (2015) (written judgment
Cite as 

 (2020)                                              597

imposed $210 in attorney fees not pronounced in the defendant’s presence).1
         Here, as noted, defendant argues that the trial court
erred because it did not pronounce the three fees at sentencing but instead imposed them for the first time in the written judgment.2 In response, the state essentially concedes
that the trial court erred but argues that the appeal is moot
or, alternatively, that the errors were harmless.
         With respect to mootness, we are unpersuaded that
the appeal is moot. Although the trial court continued the
terms of probation in a later judgment entered in September
2019, it did not impose the terms anew. Indeed, the trial
court expressly declined to “reiterate the fines and fees after
the fact,” as the state had requested, and instead simply
continued the terms of probation. Under the circumstances,
the appeal is not moot.
          Turning to the merits, the only significant question
is harmlessness. The state argues that any error was harmless, at least with respect to the substance abuse evaluation
fee, because it is a mandatory fee, and the victim impact
panel fee, because defendant had already been ordered to
attend a victim impact panel in a different case.

     1
       “The right to be present at sentencing has both statutory and constitutional sources.” State v. Jacobs, 

, 

 (2005)
(identifying the statutory source as ORS 137.030 and the constitutional
sources as Article I, section 11, of the Oregon Constitution, and the Fourteenth
Amendment to the United States Constitution). The statutory right is limited to felonies. ORS 137.030 (requiring the defendant to “be personally present” for giving of judgment on a felony conviction, but not a misdemeanor
conviction). Here, defendant was convicted of misdemeanors, so he necessarily relies on the constitutional right. Although we have applied the principle
more often to felonies, we have also applied it to misdemeanors—see, e.g.,
Baccaro, 

 (the trial court erred by imposing a fee outside
the defendant’s presence as part of a misdemeanor sentence); Coghill, 298
Or App at 819 (accepting the state’s concession that the trial court erred by
imposing a fee outside the defendant’s presence as part of a misdemeanor
sentence)—and the state does not argue for any distinction between felonies and
misdemeanors.
     2
       Defendant also challenges the imposition of the fees as not reasonably
related “to the crime of conviction or the needs of the probationer for the protection of the public or reformation of the probationer, or both.” ORS 137.540(2)
(imposing limitations on special conditions of probation). However, we need not
reach that issue given our disposition. See State v. Anotta, 

, 177
n 1, 

 (2020) (similar disposition).
598                                                        State v. Dennis

         Defendant argues that, even if the the substance
abuse evaluation fee was mandatory, that does not make the
error in imposing it outside his presence harmless, because,
if he had known about the fee, he could have tried to persuade the trial court to reduce other fees to offset it given
his financial circumstances. Cf. Baccaro, 

(holding that imposing fee outside of the defendant’s presence was not harmless, even though the fee was mandatory,
because defendant could have asked the court to exercise
its discretion to suspend that part of the sentence); State
v. Jacobs, 

, 

 (2005) (holding that trial court’s error in pronouncing judgment outside the defendant’s presence was not harmless, because it
denied the defendant the opportunity to plead for leniency
or make any other argument or statement about his sentence). Defendant further argues that the state has made
no harmlessness argument regarding the monitoring fee,
which defendant contends was waivable, and that there is
nothing in the record to indicate that defendant was ordered
to pay the victim impact panel fee in the other case mentioned by the state.
         Because we conclude that the trial court erred
in imposing the three challenged fees outside defendant’s
presence and that at least one of those errors (the victim
impact panel fee) was not harmless, we reverse and remand
for resentencing. See ORS 138.257(4) (requiring remand for
resentencing if we determine that the trial court committed an error that requires resentencing, and providing that
the trial court “may impose a new sentence for any conviction” on remand).3 We need not address the parties’ harmlessness arguments as to the other two fees that defendant
challenges, given that defendant will be resentenced in any
event.
        Finally, after appealing the September 2018 judgment (A169176), defendant also appealed the September
2019 judgment (A172819), and we consolidated those appeals

    3
      ORS 138.257(4) applies because the judgment on appeal was entered after
January 1, 2018. State v. Tison, 

, 372 n 3, 

, rev den,

 (2018); see also State v. Toombs, 

, 174 n 2, 

(2020) (stating that ORS 138.257(4) applies to all misdemeanors and felonies).
Cite as 

 (2020)                           599

at defendant’s request. It appears that defendant appealed
the September 2019 judgment out of an excess of caution,
because of the state’s mootness argument regarding the first
appeal. Given our disposition and the lack of any assignment of error with respect to the September 2019 judgment,
we affirm that judgment. See State v. Snyder, 

, 310 n 1, 

 (2016) (similar disposition).
        In A169176, remanded for resentencing; otherwise
affirmed. In A172819, affirmed.