State v. McKerrall

                                      682

                Submitted October 2, affirmed December 2, 2020


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    BROOKE LEE McKERRALL,
                       Defendant-Appellant.
                    Yamhill County Circuit Court
                       19CR24106; A171497
                                  

    Defendant challenges the sentencing court’s imposition of $750 in restitution for economic damages related to her second-degree criminal mischief conviction. Defendant argues that the state’s failure to produce evidence sufficient
to establish the reasonableness of economic damages recoverable as restitution
was plain error. The state concedes that the sentencing court plainly erred and
that this court should exercise its discretion to correct the error. Held: Although
the parties were correct to point out that the evidence supporting the restitution
awarded was legally insufficient, defendant’s apparent encouragement of the restitution awards compelled against exercising discretion to correct the plain error.
    Affirmed.



    Ladd J. Wiles, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anna Belais, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
    ARMSTRONG, P. J.
    Affirmed.
Cite as 

 (2020)                              683

        ARMSTRONG, P. J.
         Defendant, convicted of one count of second-degree
criminal mischief (and two counts of violating a stalking protective order), challenges the sentencing court’s imposition
of $750 in restitution for economic damages related to the
criminal mischief conviction. ORS 137.106 (restitution must
be awarded to victims for economic damages resulting from
crimes of which a defendant has been convicted). Defendant
argues that the state’s failure to produce evidence sufficient
to establish the reasonableness of economic damages recoverable as restitution was plain error and asks us to exercise
our discretion to correct it. ORAP 5.45(1). The state concedes that the sentencing court plainly erred and that we
should exercise our discretion to correct the error. We do not
accept the concession. That is because, although we agree
with the parties that the evidence supporting the restitution awarded was legally insufficient, defendant’s apparent
encouragement of the restitution awards compels us not to
exercise our discretion to correct the plain error. See Ailes
v. Portland Meadows, Inc., 

, 

(1991) (even if error meets test for plain error, “the appellate
court must exercise its discretion to consider or not to consider the error”); State v. Fults, 

, 

(2007) (when exercising Ailes discretion, an appellate court
may consider, among other factors, the defendant’s apparent
encouragement of the judge’s choice). We therefore affirm.
          The following facts are not in dispute. Defendant’s
criminal mischief conviction was based on defendant slashing the soft top of a Jeep belonging to the victim, who had
been having an affair with defendant’s husband. At defendant’s bench trial, the victim testified to the cost estimate of
$1,545.50 that she had received from an insurance company
for repair of the soft top and replacement of the Jeep’s tires,
which also had been slashed, but could not say how much of
the insurance estimate was attributable to the tires and how
much to the soft top. The victim also said that she had paid
a $250 deductible and, because the insurance company did
not pay for the entire repair, she had paid out-of-pocket $175
for the tires and $130 for the soft top. Because the trial court
could not find beyond a reasonable doubt that the victim was
responsible for slashing the tires, and therefore could not
684                                          State v. McKerrall

find that defendant had caused greater than $1,000 in economic damage to support the first-degree criminal mischief
charge, the court found defendant guilty of a lesser-included
second-degree criminal mischief offense.
         At the sentencing hearing, the state requested
$750 in restitution, with the prosecutor stating that the victim had reported that the soft top had cost her $500 and
that she had paid a $250 deductible. For defendant’s part,
defense counsel explained that her client had no employment and no financial resources and that she was not in a
position to “pay a lot of extra fines and fees.” However, defendant did “understand that … restitution is a priority, and
she’ll makes sure that it gets taken care of.” The court asked
defense counsel:
      “[A]s you’ve said, … the focus should be on the restitution, and so I wanted to clarify that. The restitution was
   just for the deductible and the soft top repairs. Do you have
   any objection to the 750?”
Defense counsel answered, “No, Your Honor.” The court
suspended the imposition of a jail sentence and sentenced
defendant to 24 months of supervised probation for the
criminal mischief conviction. The court also waived any further financial obligations, given that defendant’s ability to
pay was limited and that “priority should be given to pay
for the restitution.” The court awarded $750 in restitution
to the victim.
          On appeal, defendant relies on State v. Aguirre-Rodriguez, 

, 

 (2019), rev allowed,

 (2020), to assert that the state’s evidence on restitution was insufficient to establish that the economic damages recoverable as restitution included “objectively verifiable
monetary losses including … reasonable costs incurred for
repair or for replacement of damaged property, whichever is
less.” ORS 31.710(2)(a). In Aguirre-Rodriguez, we said that a
bill for automobile repair costs, along with evidence that the
bill was paid, is insufficient to establish that the costs were
“reasonable,” as ORS 31.710(2)(a) requires. 

. “[T]he fact that a charge is billed, standing alone, says
nothing about whether that charge is reasonable.” 

 That
is, the state in that case was required to present supporting
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 (2020)                                           685

evidence regarding the relevant market for the automobile
repair to establish reasonableness. 

 Similarly, in this
case, defendant asserts that the state was required to submit more than just the insurance estimate for repairs and
the victim’s testimony about her out-of-pocket expenses. As
in Aguirre-Rodriguez, defendant contends, the state was
required to introduce evidence regarding the relevant market rate for repairing a Jeep soft top.
         The state responds that the problem with its restitution evidence was that there appears to be no factual basis
for the $750 award. The victim testified that she had paid a
total of $380 for the soft top repair—$130 out-of-pocket and
her $250 deductible. Given that the state did not establish
what portion of the insurance repair estimate was attributable to the soft top and that trial court found that the state
had failed to prove defendant damaged the Jeep’s tires, the
state acknowledges that it failed to establish that the particular amount of restitution awarded was supported by the
record—viz., the $500 figure announced by the prosecutor
at sentencing was unsupported by the victim’s testimony.
Therefore, the state explains, the deficiency of its evidence
is the same kind of deficiency that we identified in State v.
Morgan, 

, 

 (2015). In that case,
the victim testified that his economic damages were “over
$1,000.” 

. Yet the victim sought $7,000 in damages
and the state requested a modified restitution of $3,000, to
reflect the figures for which there was testimony at trial. 

Because neither figure was rationally tethered to the particular amount of economic damages adduced by the state,
we held that the court plainly erred in ordering $3,000 in
restitution. 

.
         Here, we agree with the state that the court plainly
erred in awarding $750 for the reason we identified in
Morgan. The particular figure—$500—represented by the
prosecutor as the victim’s out-of-pocket expense was not
supported by evidence in the record.1 That conclusion, however, does not end our plain-error analysis. We must decide
   1
     In the state’s view, because the victim’s testimony did not support the
$750 amount and imposing restitution in that amount was plain error under
Morgan, we need not reach whether the court plainly erred under our holding in
Aguirre-Rodriguez.
686                                                       State v. McKerrall

whether the plain error merits exercising our discretion
to correct it. Ailes, 

. And, in that respect, it
is largely understandable, given our practice of correcting
plainly erroneous restitution awards, that the state would
agree with defendant that we should exercise our discretion to correct the plain error. See State v. Benz, 

, 371-72, 

 (2017) (noting that “we have consistently exercised discretion to correct plain errors in restitution awards, even where a defendant’s objection below
was vague or nonexistent”). In exercising our discretion to
correct plain restitution errors, we have rejected the state’s
contention that the “policies behind the general rule requiring preservation” outweigh other Ailes factors (for example,
the gravity of the error and the ends of justice in the particular case). Benz, 289 Or App at 372 (“Principles of judicial efficiency weigh against our ‘review in nearly all cases
where review of unpreserved issues [is] under consideration’;
thus, that factor often offers little useful guidance.” (quoting
State v. Reynolds, 

, 

 (2012));
Morgan, 

 (rejecting as unlikely the state’s
contention that we should not exercise plain-error discretion
because, had the defendant objected below, the state could
have developed an adequate record to support the restitution amount).
          In this instance, however, there is one factor that
the Supreme Court has identified concerning the exercise
of Ailes discretion that counsels against exercising our discretion to correct the plain error: a defendant’s apparent
encouragement of the sentencing court’s choice. Fults, 

.2 At the sentencing hearing in this case, defense
counsel made it clear that her client “understand[s] that
… restitution is a priority, and she’ll makes sure that it
gets taken care of.” Further, defendant understood that she
was facing the possibility of three minimum misdemeanor

    2
      In Fults, the Supreme Court rejected this court’s reason for exercising
plain-error discretion to correct an error in imposing a concurrent sentence
(“The state has no valid interest in requiring defendant to serve an unlawful sentence.”) by applying other factors: “(1) defendant’s apparent encouragement of the
judge’s choice; (2) the role of the concurrent, permissible 36-month probationary
sentence; (3) the possibility that defendant made a strategic choice not to object to
the sentence; and (4) the interest of the judicial system in avoiding unnecessary
repetitive sentencing proceedings.” 

.
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 (2020)                              687

fines, ORS 137.286(1) ($100 fine for a misdemeanor conviction)—and that the sentencing court had discretion to waive
them, ORS 137.286(3) (a sentencing court may waive ORS
137.286 minimum fines if it finds that requiring payment of
the fines “would be inconsistent with justice”). It is evident
that defendant made it known to the sentencing court that
she wished to make amends, to the extent that she could, by
recompensing the victim for economic damages that she had
caused by slashing the victim’s Jeep soft top, and that she
sought leniency from the court for other fines or fees that the
court had authority or discretion to impose.
         Consequently, it is clear to us that, when the sentencing court asked defense counsel if defendant had any
objection to the $750 restitution amount and defense counsel responded that there was no objection, both the court
and defendant understood that restitution was the priority
and that defendant was neither going to take issue with
the particular amount of $750, Morgan, 

,
nor require the state to present some evidence of market
rates for soft top repair, Aguirre-Rodriguez, 

. Indeed, that understanding was obvious when the court
said, in ordering the restitution amount, that priority was
being given to restitution and that it was waiving any other
financial obligations that it could impose.
         Because the sentencing court imposed the restitution amount with the encouragement of defendant, we
decline to exercise our discretion to correct the error. In this
case, defendant’s apparent encouragement of the restitution
award outweighs other factors that would otherwise support
exercising our discretion to correct the error. See, e.g., State
v. Martinez, 

, 

 (2012) (exercising our discretion to correct $273 restitution award to an
insurance company unsupported by evidence because the
“the interests of justice militate against requiring a defendant to pay an obligation that is totally unsubstantiated by
the record”).
        Affirmed.