State v. Vierria

                                      46

   Submitted January 14; portion of judgments requiring defendant to pay
probation-violation assessments vacated, remanded for resentencing, otherwise
                           affirmed October 7, 2020


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   FREDERICK LEE VIERRIA,
                     aka Frederick Lee Vierra,
                       Defendant-Appellant.
                   Klamath County Circuit Court
                      18CR17038, 18CR17038;
                    A168819 (Control), A168929
                                  

    Defendant appeals probation-violation judgments, challenging the trial
court’s imposition of a $25 probation-violation assessment in each instance. He
contends that the court erred because it did not announce its intention to impose
those assessments in open court. The state concedes that the court erred but
argues that the error was harmless because the fee is mandatory. Held: The court
erred by imposing the probation-violation assessments outside defendant’s presence; moreover, because defendant could have argued for arrangements related
to payment of those assessments, the error was not harmless.
   Portion of judgments requiring defendant to pay probation-violation assessments vacated; remanded for resentencing; otherwise affirmed.



   Marci Warner Adkisson, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Ingrid MacFarlane, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
   Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
   DeVORE, P. J.
   Portion of judgments requiring defendant to pay
probation-violation assessments vacated; remanded for
resentencing; otherwise affirmed.
Cite as 

 (2020)                               47

        DeVORE, P. J.
         Defendant, who was on probation for several offenses,
challenges the trial court’s imposition of $25 probation-violation assessments in two consolidated cases on the
ground that those assessments were not announced in open
court. In the first case, defendant’s probation was continued;
in the second, it was revoked, and he was sentenced to a
56-month prison term. In each instance, the court imposed
a $25 probation-violation assessment in the judgment,
although the court did not announce its intention to impose
those assessments in open court. We vacate those assessments and remand for resentencing to allow defendant an
opportunity to present arguments for arrangements related
to those assessments. Otherwise, we affirm.
          The state concedes that the court erred by imposing the assessments without first announcing them in
defendant’s presence. See State v. Hillman, 

, 

 (2018) (trial court erred by imposing $25
probation-violation fee outside the defendant’s presence). The
state contends, however, that the error is harmless because
the fee is mandatory. See ORS 137.540(12)(a) (“If the court
determines that a defendant has violated the terms of probation, the court shall collect a $25 fee from the defendant
…. The fees imposed under this subsection become part of
the judgment and may be collected in the same manner as a
fine.”). We disagree that the error is harmless.
          In State v. Baccaro, 

, 

 (2019), we held that a mandatory $100 bench probation fee imposed outside of the defendant’s presence was not
“harmless” because, if the defendant had been present, he
could have asked the court to suspend execution of that portion of his misdemeanor sentence under ORS 137.010. We
vacated and remanded for resentencing.
         Although defendant does not contend that the
court was similarly authorized to suspend execution of his
probation-violation sentence, he argues that the error here
was not harmless because he “could have requested several
available options for reducing the burden associated with
paying the fees.” For example, he could have requested the
court to (1) order installment payments, see ORS 161.675(1)
48                                             State v. Vierria

(“When a defendant, as a part of a sentence … is required
to pay a sum of money for any purpose, the court may order
payment to be made immediately or within a specified period
of time or in specified installments.”); (2) suspend payment
of the assessments, see ORS 18.048(2)(e) (money award portion of judgment in criminal action must include, “[i]f payment of all or part of a monetary obligation is suspended,
a statement specifying the nature and amount of the suspended obligations”); or (3) waive interest on the money
judgment resulting from the monetary obligation, see ORS
137.183(1), (2) (criminal judgments bear interest at rate provided by ORS 82.010; judge of circuit court may waive interest in a criminal action “for good cause shown”). Conversely,
he argues that he could have informed the court that he
wished to pay the assessments immediately, avoiding mandatory collection fees, see ORS 1.202(1) (“All circuit courts
… shall add a fee of not less than $50 and not more than
$200 to any judgment that includes a monetary obligation
that the court or judicial branch is charged with collecting.
… The fee shall be added only if the court gives the defendant a period of time in which to pay the obligation after the
financial obligation is imposed.”).
         For those reasons, we conclude that the error is not
harmless, that defendant should have had the option to urge
those possibilities, and that the appropriate disposition is to
remand for resentencing. See, e.g., State v. Postlethwait, 

, 

, rev den, 

 (2020)
(vacating portion of judgment requiring defendant to pay
$25 probation-violation fee and remanding for resentencing); State v. Pacho, 

, 

 (2019)
(same); State v. Pickerel, 

, 

 (2019)
(same); see also ORS 138.257(4)(a)(B) (“The appellate court
shall remand the case to the trial court … [i]f the appellate
court determines that the trial court, in imposing or failing
to impose a sentence in the case, committed an error that
requires resentencing.”).
        Portion of judgments requiring defendant to pay
probation-violation assessments vacated; remanded for
resentencing; otherwise affirmed.