220
Submitted December 20, 2019; portion of judgment requiring defendant to pay
$500 chapter 163 assessment and $130 DUII conviction fee on Count 2 reversed,
portion of judgment requiring defendant to pay $100 bench probation fee on
Counts 1 and 2 vacated, remanded for resentencing, otherwise affirmed
June 9, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
JEDIDIH ALAKA ANOTTA,
Defendant-Appellant.
Multnomah County Circuit Court
17CR05753; A167331
493 P3d 26
Defendant appeals a judgment of conviction for driving under the influence
of intoxicants (DUII) (Count 1) and reckless driving (Count 2), both misdemeanors. Defendant pleaded no contest to the DUII charge and guilty to the reckless
driving charge and entered DUII diversion. Upon finding that defendant had violated his diversion agreement, the trial court terminated diversion and entered
a judgment of conviction on both counts. On appeal, defendant asserts that the
court erred in terminating his diversion and in imposing various fees and assessments at sentencing. Held: ORS 138.105(5) bars appellate review of the validity
of defendant’s convictions. State v. Merrill, 311 Or App 487,
492 P3d 722 (2021).
However, the trial court erred in imposing a $100 bench probation fee on each
count, because the court did not announce those fees on the record in defendant’s
presence. The trial court also erred in imposing a $500 chapter 163 assessment
and $130 DUII conviction fee on the reckless driving charge, because those fees
were not supported by law.
Portion of judgment requiring defendant to pay $500 chapter 163 assessment
and $130 DUII conviction fee on Count 2 reversed; portion of judgment requiring
defendant to pay $100 bench probation fee on Counts 1 and 2 vacated; remanded
for resentencing; otherwise affirmed.
Eric J. Bergstrom, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Hannah K. Hoffman, Assistant
Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
Cite as 312 Or App 220 (2021) 221
SHORR, J.
Portion of judgment requiring defendant to pay $500
chapter 163 assessment and $130 DUII conviction fee on
Count 2 reversed; portion of judgment requiring defendant
to pay $100 bench probation fee on Counts 1 and 2 vacated;
remanded for resentencing; otherwise affirmed.
222 State v. Anotta
SHORR, J.
Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII) (Count 1) and
reckless driving (Count 2), both misdemeanors. Defendant
pleaded no contest to the DUII charge and entered DUII
diversion, as permitted by ORS 813.200 to 813.270. He also
pleaded guilty to the reckless driving charge. Pursuant to
two separate agreements with the trial court, both charges
would be dismissed if defendant fully complied with the
terms of his diversion as well as several additional conditions relating to the reckless driving charge. Upon finding
that defendant had violated his diversion agreement, the
court terminated diversion and entered a judgment of conviction on both counts. On appeal, defendant asserts that
the court erred in terminating his diversion and in imposing various fees and assessments at sentencing. As to defendant’s first assignment of error, our review of the validity of
defendant’s convictions and defendant’s contention that the
court erred in terminating his diversion is barred by ORS
138.105(5). State v. Merrill, 311 Or App 487,
492 P3d 722
(2021).1 Therefore, we must affirm defendant’s convictions.
However, we may review alleged sentencing errors pursuant
to ORS 138.105(7), and, in doing so, we conclude that the
court erred in imposing the relevant fees.
First, defendant asserts that the trial court erred in
imposing a $100 bench probation fee on each count because
the court did not announce those fees on the record in defendant’s presence. In response, the state contends that the
court was required to impose those fees pursuant to ORS
137.540(8), that defendant had notice of the fees by virtue of
his placement on bench probation, and that any error was
harmless because the fees do not appear in the case register.
We agree with defendant. Preliminarily, we excuse defendant’s failure to preserve the claims of error now asserted
on appeal because the fees first appeared on the face of the
judgment and were not announced in open court. See State
v. Lewis, 236 Or App 49, 52,
234 P3d 152, rev den,
349 Or
1
Because of our determination that defendant’s convictions are not reviewable, we need not consider the state’s contention that defendant’s first assignment
of error is moot.
Cite as 312 Or App 220 (2021) 223
172 (2010). Next, the fact that the fees do not appear in the
case register is immaterial, because the fees do appear in
the judgment itself, and the judgment is an enforceable
“legal document with potential financial consequences to
defendant.” State v. Williams,
280 Or App 631, 632 & n 1,
380 P3d 1225, rev den,
360 Or 604 (2016). Finally, we have
previously explained that, pursuant to ORS 137.010, a trial
court may suspend the execution of a bench probation fee
in a misdemeanor case, and that it is error for the court
to impose that fee outside the defendant’s presence because
doing so prevents the defendant from arguing for such a suspension. State v. Baccaro,
300 Or App 131, 137,
452 P3d 1022
(2019). In light of the above, it was error for the trial court to
impose the bench probation fees without announcing them
in open court.
Defendant next asserts that the trial court erred
in imposing a $500 chapter 163 assessment and $130 DUII
conviction fee in the judgment on the reckless driving charge
because those fees were not announced in open court or supported by law. Again, the fact that the fees do not appear
in the case register is immaterial because they do appear
in the judgment. See Williams, 280 Or App at 632 & n 1.
We readily conclude that the trial court erred in imposing
the $500 chapter 163 assessment, because reckless driving is not a chapter 163 offense, and, regardless, the statute authorizing that assessment was repealed in 2011. See
former ORS 137.290(2)(b) (2009), repealed by Or Laws 2011,
ch 597, § 118. The trial court likewise erred in imposing a
DUII conviction fee on a non-DUII conviction. See, e.g., State
v. Cleaver,
266 Or App 403, 404,
337 P3d 983 (2014) (reversing and remanding for entry of a corrected judgment where
the court imposed a $500 chapter 163 assessment and $130
DUII conviction fee on a reckless driving conviction).
Portion of judgment requiring defendant to pay
$500 chapter 163 assessment and $130 DUII conviction fee
on Count 2 reversed; portion of judgment requiring defendant to pay $100 bench probation fee on Counts 1 and 2
vacated; remanded for resentencing; otherwise affirmed.
