234
Submitted April 16; portion of judgment of conviction requiring defendant to
pay $255 DUII conviction fee vacated, remanded for resentencing, otherwise
affirmed June 9, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
RUSSELL ALLEN MACY,
Defendant-Appellant.
Washington County Circuit Court
19CR14898; A172058
492 P3d 1277
Defendant appeals from a judgment of conviction for driving under the influence of intoxicants (DUII), recklessly endangering another person, and reckless driving. Defendant contends that the trial court erred in imposing a $255
DUII conviction fee in the judgment without previously announcing the imposition of that fee in court at his sentencing hearing. Held: The trial court erred
in imposing the DUII conviction fee without having first announced that fee at
defendant’s sentencing. Further, that error was not harmless because defendant
lost an opportunity to respond to the court’s imposition of the fee, which may be
waived if the defendant is indigent.
Portion of judgment of conviction requiring defendant to pay $255 DUII conviction fee vacated; remanded for resentencing; otherwise affirmed.
Theodore E. Sims, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Peter G. Klym, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Weston Koyama, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
SHORR, J.
Portion of judgment of conviction requiring defendant to
pay $255 DUII conviction fee vacated; remanded for resentencing; otherwise affirmed.
Cite as 312 Or App 234 (2021) 235
SHORR, J.
Defendant appeals from a judgment of conviction for driving under the influence of intoxicants (DUII),
ORS 813.010, recklessly endangering another person, ORS
163.195, and reckless driving, ORS 811.140. Defendant’s
convictions are all Class A misdemeanors. Defendant raises
five assignments of error. We reject all but defendant’s
fourth assignment of error in which he contends that the
trial court erred in imposing a $255 DUII conviction fee
in the judgment without having previously announced the
imposition of that fee in court at his sentencing. Because
we agree with defendant that the court erred in doing so,
we vacate that portion of the judgment requiring defendant
to pay a $255 DUII conviction fee, remand for resentencing,
and otherwise affirm.
We start with the relevant facts, which are uncontested. After the jury convicted defendant, he appeared
before the trial court for sentencing. The prosecutor began
by recommending a sentence to the court:
“Based on the facts as ha[ve] been described to me from
what happened at trial and his record, my recommendation
is that the defendant do formal probation with the drug
package. This is a drug DUII. This one being his fourth
DUII, would carry a $2,000 fine, along with the $255 DUII
fee, and then $100 on each the reckless endangering and
the reckless driving.”
The prosecutor then discussed a lifetime driver’s license
suspension on the DUII conviction, additional suspensions
for two other convictions, a no-contact order as to the victim,
and, lastly, recommended a 120-day jail sentence. Defendant
responded with a request for a 90-day jail sentence and the
following:
“I would ask for just minimal third time DUI[I] treatment,
the lifetime suspension, the standard fines and fees that we
spoke about,[1] formal probation. I believe there’s a nexus to
1
It is unclear what defense counsel is referencing when he discusses the
“standard fines and fees that we spoke about” as defense counsel had not previously spoken on the record with the court regarding fines and fees. The state does
not contend that defense counsel is adopting the prosecutor’s mention of fines and
fees nor does it contend that defense counsel’s statement has any bearing on our
analysis.
236 State v. Macy
order a drug package at this point in this case, the … two
90-day suspensions.”
After defendant’s presentation, the trial court ordered as
follows:
“All right. I’m going to give you 60 days in custody. The
first two weeks are going to be with programs. You’re going
to be on formal probation for two years. You’ll have the
drug package. There’s a $2,000 fine, a lifetime revocation
on Count 1, 90 days on Counts 2 and 3. There’s a $100 fine
on Count 2, $100 on Count 3. And you’ll need to attend the
victim’s impact panel ….”
The court did not expressly mention the imposition of a $255
DUII conviction fee, the imposition of which is provided for
in ORS 813.020. However, that fee was subsequently added
to the judgment.
As noted above, defendant contends that the trial
court erred in imposing the $255 DUII conviction fee in
the judgment because that fee had not been announced at
defendant’s sentencing. We have previously held that it is
error for a trial court to impose a fine or fee as part of a
sentence on a misdemeanor conviction in a judgment when
that fine or fee was not previously announced in open court
at the defendant’s sentencing hearing. State v. Tison, 292 Or
App 369, 374,
424 P3d 823, rev den,
363 Or 744 (2018) (citing cases where we so held). The state does not contest that
that legal principle applies but contends that the DUII conviction fee was announced by the court at defendant’s sentencing hearing. The state posits that the court effectively
announced the imposition of the DUII conviction fee when it
stated, “You’ll have the drug package.” The state contends
that reference incorporated the fee when considered in the
context of the prosecutor’s “drug package” recommendation.
We disagree.2
As an initial matter, the prosecutor did not make
it apparent that the “drug package” included the DUII conviction fee. Indeed, the prosecutor asked for the imposition
2
We note that a defendant is not required to preserve a challenge to a portion of a sentence that appeared for the first time in a judgment because the
defendant had no opportunity to preserve the challenge at a hearing where that
sentence was never announced. Tison, 292 Or App at 372.
Cite as
312 Or App 234 (2021) 237
of “the drug package” in connection with its reference to
probation and before separately listing the various recommended fines and fees. A “drug package” in sentencing is
not a term of art that means the same thing in all contexts,
but we have acknowledged that, as a general matter, it is
a package of special conditions of probation whose precise
contours may vary among counties or judges. State v. Nilsen,
125 Or App 402, 404,
865 P2d 474 (1993); see also State v.
Nguyen,
298 Or App 139, 140,
445 P3d 390 (2019) (noting
that a trial court had, in addition to imposing general probation conditions, imposed “the special condition of the drug
package”). In that light, the reference to the drug package
almost certainly referred to the conditions of probation that
the prosecutor had just referenced. Regardless, it would not
have been apparent that it referred to a DUII conviction fee
that is imposed under ORS 813.020.3
The state claims this case is controlled by State v.
White, 269 Or App 255,
344 P3d 255, rev den,
357 Or 300
(2015). In White, the trial court had expressly adopted the
state’s recommended sentence by stating that it would “post
the other obligations that [had] been outlined” in the state’s
recommended sentence. Id. at 256. The state had recommended some specific fines and fees by name and amount
and also recommended “all the other general conditions that
are normally asked for” in a DUII prosecution. Id. (brackets
omitted). We held that the court’s adoption of the state’s
recommended sentence included both the specific fines and
fees that the prosecutor mentioned and a $100 bench probation supervision fee that is a general condition of probation
under ORS 137.540(1)(a) and ORS 137.540(7). Id. at 256-57.
In other words, the trial court’s assumption of the “other
obligations that [had] been outlined” adopted the state’s
recommendation for the general conditions of probation in a
DUII sentence, including the probation supervision fee. Id.
We acknowledge that trial courts sometimes speak in short
hand at sentencing and adopt by specific reference a state’s
3
ORS 813.020(1)(a) provides, in relevant part, that, when a person is convicted of driving while under the influence of intoxicants, “the court shall require”
the person to “[p]ay to the court the fee described under ORS 813.030 [providing
for a $255 fee].” As we discuss below, that fee may be waived in full or part if the
defendant is indigent. ORS 813.030.
238 State v. Macy
recommended sentence in a manner where the imposition
of the fine or fee is apparent when viewed in context, as in
White, but this is not such a case. Here, the DUII fee that
was added to the judgment was not part of the drug package
mentioned by the prosecutor in the sentencing and was not
then incorporated by the court by adoption or otherwise.
We have previously concluded that the later imposition of a fee outside of the defendant’s presence is not harmless where the defendant lost the opportunity to respond to
the court with an argument that could have resulted in a
suspension of the fee. See State v. Baccaro, 300 Or App 131,
137,
452 P3d 1022 (2019) (stating same in case involving
potential suspension of bench probation fee later added to
the judgment). Here, the $255 DUII conviction fee can be
waived by the trial court if the defendant is indigent. ORS
813.030. Defendant never had an opportunity to respond to
the court to argue against the imposition of that fee because
it was announced for the first time in the judgment.
We turn to the appropriate disposition. In the parties’ briefing, the state asked us to affirm whereas defendant requested a pure reversal of the DUII conviction fee.
Neither fit this circumstance. In a similar misdemeanor
DUII case where the trial court assessed fines in the judgment that were $255 above those mentioned at the sentencing hearing, we remanded for resentencing to determine if
the $255 excess amount was the same DUII conviction fee
at issue here and, if so, whether the trial court would impose
or waive the fee on remand if the defendant was indigent.
Tison, 292 Or App at 374-75; see also ORS 138.257(4)(a)(B)
(stating that the appellate court “shall” remand the case to
the trial court if it determines that the trial court committed
a sentencing error that requires resentencing). Accordingly,
we do the same here.
Portion of judgment of conviction requiring defendant to pay $255 DUII conviction fee vacated; remanded for
resentencing; otherwise affirmed.
