41
Submitted February 25, affirmed July 8, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
RUBY LAVONNE BOLTON,
Defendant-Appellant.
Washington County Circuit Court
18CR30832; A171673
493 P3d 1116
Defendant was convicted of various crimes for misrepresenting her marital
status to obtain public assistance in 2015 and 2016. In addition to restitution, the
trial court imposed a $73,593.90 compensatory fine, which accounted for public
assistance that defendant had unlawfully obtained prior to 2015. She appeals,
contending that the trial court erred in imposing the compensatory fine for conduct that occurred prior to the time period covered by the indictment. Held: The
trial court did not err. The court was authorized to impose a penalty fine under
ORS 161.625 and then, under ORS 137.101, to direct that that fine money be used
to compensate the victim of defendant’s crime, without limiting the amount of the
compensatory fine to the economic damages sustained by the victim.
Affirmed.
Andrew Erwin, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel C. Bennett, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
SHORR, J.
Affirmed.
42 State v. Bolton
SHORR, J.
Defendant was convicted of three counts of firstdegree theft, ORS 164.055, three counts of unlawfully
obtaining public assistance, ORS 411.630, and three counts
of unlawfully obtaining supplemental nutrition assistance,
ORS 411.840. She appeals from a judgment imposing a
$73,593.90 compensatory fine, contending that the trial
court erred in imposing that fine based on criminal activities that were not alleged in the indictment. We affirm.
The relevant facts are largely procedural and undisputed. The state charged defendant with various crimes,
alleging that, in 2015 and 2016, defendant had obtained
public assistance that she was not entitled to receive by misrepresenting her marital status to the Oregon Department
of Human Services (DHS). Although the criminal activity
alleged in the indictment occurred in 2015 and 2016, at
trial, the state presented evidence that defendant had misrepresented her marital status to DHS beginning in 2010.
After defendant was convicted, she stipulated to a restitution award of $17,307.00, which was calculated based on the
amount of public assistance she had unlawfully obtained
during the time period covered by the indictment. The
court also awarded a compensatory fine of $73,593.90 based
on the additional assistance she had received starting in
2010.
On appeal, defendant contends that it was error
for the trial court to impose a compensatory fine for defendant’s receipt of public assistance that occurred prior to the
time period covered by the indictment. We rejected a similar
argument in State v. Garlitz, 287 Or App 372,
404 P3d 1090
(2017). In that case, the defendant pleaded guilty to identity
theft and criminal mistreatment for her financial abuse of
an elderly man and her fraudulent use of bank cards under
his name.
Id. at 374. The trial court imposed a compensatory
fine that accounted for the losses caused by the defendant to
the victim and various banks.
Id. at 375-76. The defendant
argued that the court erred in imposing the compensatory
fine because it “exceed[ed] the damages incurred by [the victim] and the banks within the date range set out by her
guilty plea.”
Id. at 376. In other words, the defendant argued
Cite as
313 Or App 41 (2021) 43
that “a fine designated as compensatory cannot exceed the
economic losses in fact caused by the specific conduct to
which defendant admitted.”
Id.
We explained that, unlike the restitution statute,
the compensatory fine statute, ORS 137.101, operates as a
“distribution mechanism” that permits a sentencing court to
redirect money from fines imposed as penalties for certain
crimes:
“Under ORS 161.625, a sentencing court is authorized to
impose a fine upon a defendant as penalty for the commission of classified felonies. ORS 137.101, in turn, authorizes
a sentencing court to direct that some or all of that fine
money be used to compensate the victims of the defendant’s
crimes if those victims have suffered damages for which
they would have a civil action against the defendant as a
result of those crimes.”
Id. at 376-77. We further explained that, “[a]lthough a
sentencing court’s authority to redirect that money is not
unlimited, the amount of the compensatory fine need not
be calibrated to—or limited to—the economic damages sustained by the victim[.]” Id. at 377. Therefore, the defendant’s
argument that the trial court erred when it did not restrict
the compensatory fine to the specific damages that the victims suffered during the time period covered by the defendant’s plea “necessarily fail[ed].” Id. at 378.
The same reasoning applies here.1 The trial court
“was permitted to impose whatever penalty fines were
authorized by ORS 161.625”—which were authorized here
in excess of the compensatory fine at issue—and then,
“under ORS 137.101, direct that some or all of those monies
be paid to [the victim] of defendant’s offenses without determining the precise value of damages caused by defendant’s
conduct.” Id. Thus, the court did not err when it imposed
a compensatory fine that was greater than the amount of
1
In Garlitz, we noted that the “only requirements” to impose a compensatory
fine are that the “victim have a remedy by civil action for the injuries that he or
she suffered as a result of defendant’s crime and that punitive damages have not
been previously decided in a civil case arising out of the same act and transaction.” 287 Or App at 377. Defendant does not contend that those requirements
were not met here.
44 State v. Bolton
economic damages that the victim suffered during the time
period alleged in the indictment.
Affirmed.
