State v. Seck

                                    641

 Submitted March 31, affirmed June 10, petition for review denied August 27,
                            2020 (

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                    MALLORY ANNA SECK,
                      Defendant-Appellant.
                   Marion County Circuit Court
                      17CR51308; A168550
                                

   Donald D. Abar, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie J. Hortsch, Deputy Public Defender,
Office of Public Defense Services, filed the opening brief for
appellant. Mallory Anna Seck filed the supplemental and
reply briefs pro se.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
   PER CURIAM
   Affirmed.
642                                                             State v. Seck

           PER CURIAM

         In this appeal, defendant argues that the trial court
erred in imposing a $200 fine under ORS 137.286(2) (“the
minimum fine for a felony is $200”) without considering her
financial ability to pay it.1 Relying in part on State v. Wheeler,

, 

 (2015), defendant contends that
“ORS 137.286, in combination with ORS 161.645,” requires
the trial court to consider a defendant’s ability to pay before
imposing a minimum fine. ORS 137.286(3) (providing that a
court “may waive” the minimum fine “if the court finds that
requiring payment of the minimum fine would be inconsistent with justice,” and that a court “shall consider” a defendant’s ability to pay in making “its determination”); ORS
161.645 (providing that “[i]n determining whether to impose
a fine and its amount” a trial court must consider ability to
pay). For the following reasons, we affirm.

         To begin, we agree with the state that defendant
failed to preserve the argument that she raises on appeal.
See State v. Wyatt, 

, 

 (2000)
(“Generally, an issue not preserved in the trial court will
not be considered on appeal.”). Although defendant objected
to the imposition of the fine, she failed to argue to the court
that ORS 161.645 required it to consider defendant’s ability
to pay before imposing a minimum felony fine under ORS
137.286. See 

 (“[A] party must provide the trial
court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged
error with enough clarity to permit it to consider and correct
the error immediately[.]”).

         Defendant argued that the issue was preserved,
though we have concluded that it was not, and she did not
ask for plain-error review. The state, for its part, concedes
that the trial court plainly erred, while asserting that we
should not exercise our discretion to correct it. Even assuming we would undertake plain-error review without an

    1
      We reject without written discussion the arguments raised in defendant’s
pro se supplemental briefing and defendant’s challenge to the fine under Article I,
section 16, of the Oregon Constitution, and the Eighth Amendment to the United
States Constitution.
Cite as 

 (2020)                            643

explicit request from defendant, we are not inclined to agree
with the state that the error qualifies as plain.
         The state’s concession is based on ORS 161.645 and
prior cases interpreting that statute. However, the cases in
which we have held that a court must consider a defendant’s
ability to pay under ORS 161.645 involve the imposition of
fines other than the $200 mandatory minimum fine imposed
under ORS 137.286. See Wheeler, 

 (involving fine imposed under ORS 161.645); State v. Beltran, 

, 

 (1994) (imposition of $10,000
fine). Further, State v. Manoff, 

, 

 (2019), does not hold otherwise. Although Manoff implicitly suggests that ORS 161.645 applies to minimum fines
imposed under ORS 137.286, it did not analyze that issue or
conclude so. Manoff merely relied on Wheeler to summarily
reject the defendant’s plain-error argument. Lastly, it is not
plain from the text of the statutes that ORS 161.645 applies
to fines imposed under ORS 137.286. Therefore, we do not
accept the state’s concession and affirm.
        Affirmed.