State v. Avalos

                                  362

   Submitted November 24, remanded for resentencing, otherwise affirmed
                           December 30, 2020


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                  MERLINDA M. AVALOS,
                    Defendant-Appellant.
               Washington County Circuit Court
                    18CR41305; A170462
                               

   D. Charles Bailey, Jr., Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erik Blumenthal, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Dashiell L. Farewell, Assistant
Attorney General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
   PER CURIAM
   Remanded for resentencing; otherwise affirmed.
Cite as 

 (2020)                             363

        PER CURIAM
        Defendant was convicted of six counts of first-degree
criminal mistreatment, ORS 163.205. On appeal, defendant
contends that the trial court erred when it ordered her to
pay restitution to CareOregon and to Child Abuse Response
and Evaluation Services (CARES) Northwest and to pay a
compensatory fine totaling $20,000 to the three child victims. Defendant did not preserve those contentions and
seeks plain error review. ORAP 5.45(1).
         In response, the state concedes that the trial court
plainly erred when it ordered defendant to pay restitution
to CARES Northwest and to pay a compensatory fine to the
child victims of her crimes. We agree with and accept the
state’s concession regarding CARES Northwest. State v.
White, 

, 

, rev den, 

 (2019) (on the record before the trial court, CARES
did not suffer economic damages “as a result of the defendant’s criminal activities” by providing services to the direct
victim of the defendant’s crimes and, under the restitution
statute, was therefore not a “victim” to whom the defendant
could be ordered to pay restitution). We also agree with and
accept the state’s concession that the children were not “victims” for compensatory purposes because they did not personally suffer economic damages, and therefore it was error
for the court to order the compensatory fine to the children.
See State v. Moreno-Hernandez, 

, 

 (2019) (economic damages required to qualify as
“victim” under ORS 137.103(4); unemancipated minor does
not suffer economic damages for medical expenses).
         Defendant argues that it was plain error for the
court to award restitution to CareOregon because it is
an insurer and does not qualify as a “victim” under ORS
137.103(4). For plain-error review, “(1) the error must be
an error of law; (2) it must be ‘apparent,’ in that the ‘legal
point is obvious, not reasonably in dispute’; and (3) it must
appear on the record such that ‘[w]e need not go outside the
record or choose between competing inferences to find it,
and the facts that comprise the error are irrefutable.’ ” State
v. Coverstone, 

, 

 (2014) (quoting State v. Brown, 

, 

 (1990)).
364                                           State v. Avalos

The state argues that CareOregon, as a Coordinated Care
Organization and Oregon Health Plan provider, qualifies as
a victim under ORS 137.103(4)(b) and asserts that any error
is not plain. We conclude that defendant’s contention fails on
the second prong of the plain-error test and agree with the
state that it is not susceptible to plain-error review.
         Regarding disposition, the state argues that we
should reverse as to the imposition of restitution for CARES
Northwest and the compensatory fine and remand for resentencing to allow the trial court to determine if it has “other
permissible options available to it” regarding the imposition
of restitution or a fine. State v. White, 

, 169,

 (2019) (citing Moreno-Hernandez, 

). We agree and remand for resentencing consistent
with this opinion
        Remanded for resentencing; otherwise affirmed.