State v. Shipley

                                 263

 Submitted February 28; case No. 17CR54556 reversed, case No. 18CR04778
                        affirmed October 14, 2020


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
               ROGER WILLIAM SHIPLEY II,
                 aka Kevin William Morgan,
                      aka Roger Shiple,
                 aka Roger William Shipley,
                aka Roger William Shipley, Jr.,
                     Defendant-Appellant.
                Umatilla County Circuit Court
                   17CR54556, 18CR04778;
                 A168244 (Control), A168239
                              

  Daniel J. Hill, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah Laidlaw, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Philip Thoennes, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
  PER CURIAM
   Case No. 17CR54556 reversed. Case No. 18CR04778
affirmed.
264                                                         State v. Shipley

           PER CURIAM
         This is a consolidated criminal appeal. In Case
No. 17CR54556, defendant was convicted of misdemeanor
failure to report as a sex offender, ORS 163A.040(3)(a). The
court discharged defendant’s sentence but ordered defendant to pay a $100 misdemeanor fine, ORS 137.286(1). On
appeal, defendant challenges the trial court’s denial of his
motion for judgment of acquittal, which argued that he
could not be convicted of a failure-to-report offense because
the relevant sex registration and reporting obligations did
not apply to him. In defendant’s view, the triggering event of
registration—release from custody—occurred before the relevant registration statutes were enacted. The state concedes
that, under our reasoning in State v. Driver/Collins, 

, 

, rev den, 

 (1996), and
State v. Clum, 

, 

 (2007), defendant was not subject to any sex offender reporting requirements and the trial court erred in concluding otherwise.
We agree with the state, accept the concession, and reverse
defendant’s failure-to-report conviction.1
         In Case No. 18CR04778, defendant, on a guilty plea,
was convicted of first-degree failure to appear and ordered
to pay a $200 felony fine. Defendant asks that we review the
imposition of the fine as plain error, ORAP 5.45(1), arguing that the statute that requires a $200 felony fine, ORS
137.286 (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”
whether to waive the fee), requires an ability-to-pay determination and that the trial court failed to do that. Further,
defendant argues that our case law concerning another statute, ORS 161.645 (in “determining whether to impose a fine
and its amount” a trial court must consider ability to pay),
supports his argument that the trial court lacked authority
to impose the felony fine without considering a defendant’s
ability to pay. See State v. Packer, 

, 916

     1
       In an additional assignment of error, defendant challenges the imposition
of the $100 misdemeanor fine, but our reversal of the conviction obviates the need
to address that assignment.
Cite as 

 (2020)                            

 (1996) (under ORS 161.645, “a court is required
first to consider a defendant’s ability to pay a fine”).
         Recently, in State v. Seck, 

,

, rev den, 

 (2020), we held that it
was not plain error for the trial court to impose a minimum
felony fine under ORS 137.286(2) without considering the
defendant’s financial ability to pay it. In Seck, we pointed
out that ORS 161.645 and prior cases interpreting that statute concern fines other than the $200 mandatory minimum
fine imposed under ORS 137.286, and we concluded that “it
is not plain from the text of the statutes that ORS 161.645
applies to fines imposed under ORS 137.286.” Id. at 643. We
likewise hold in this case that it was not plain error for the
trial court to order defendant to pay the $200 felony fine.
        Case No. 17CR54556 reversed. Case No. 18CR04778
affirmed.