699
Submitted October 19, 2020; supplemental judgment requiring defendant to pay
$240.50 in restitution reversed, otherwise affirmed August 4, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
JACK CASTILLO,
Defendant-Appellant.
Washington County Circuit Court
17CR78881;
A170025 (Control), A170026
495 P3d 191
Defendant injured the victim in this case, T, by pushing her to the ground. T
sought medical treatment for her injuries, which cost just under $250. As a result
of defendant’s conduct, defendant was charged with, and convicted of, two counts
of harassment, ORS 166.065. At sentencing, neither the state nor T requested
restitution for T’s medical expenses. Over six months later, T contacted the district attorney’s office to assert her right to “prompt restitution” under Article I,
section 42, of the Oregon Constitution. The state subsequently asserted that
right on T’s behalf, and the trial court entered a supplemental judgment awarding T restitution. Defendant appeals that supplemental judgment, arguing that
the request was untimely. In response, the state argues that, when it asserts
a victim’s right to prompt restitution, the 30-day time limit imposed by ORS
147.515 does not apply. Held: The trial court erred in awarding restitution to T.
Under ORS 147.515(1), a victim—by herself, through her attorney, or through
the prosecuting attorney—must assert her right to prompt restitution within 30
days that she knew or reasonably should have known that her right had been
violated. In this case, the date on which T asserted her constitutional claim was
beyond the 30-day time limit imposed by ORS 147.515(1). The request was therefore untimely.
Supplemental judgment requiring defendant to pay $240.50 in restitution
reversed; otherwise affirmed.
Eric Butterfield, Judge. (Judgment)
Theodore E. Sims, Judge. (Supplemental Judgment)
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
700 State v. Castillo
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
MOONEY, J.
Supplemental judgment requiring defendant to pay
$240.50 in restitution reversed; otherwise affirmed.
Cite as 313 Or App 699 (2021) 701
MOONEY, J.
Defendant pleaded guilty to two counts of harassment (Counts 2 and 3), ORS 166.065, for which he was placed
on two years of bench probation and ordered to pay attorney
fees and a fine. Restitution was not addressed. Six months
later, a Claim of Violation of Crime Victim’s Rights was filed
by the district attorney on behalf of T, the victim in Count 3,
and at T’s request. A restitution hearing was held more than
two months later, and the trial court ordered defendant to
pay restitution to T in the amount of $240.50. Defendant
appeals the supplemental judgment awarding restitution,
arguing that the court erred by holding an untimely restitution hearing. We agree and reverse the supplemental judgment awarding restitution.
We “review orders of restitution for errors of law”
and we are bound by any factual findings supported by evidence in the record. State v. McClelland, 278 Or App 138,
141,
372 P3d 614, rev den,
360 Or 423 (2016). The essential
facts are generally not in dispute and we state them consistently with our standard of review.
On October 28, 2017, defendant, T, and N were at
a Halloween party in Sherwood. Defendant grabbed N’s
breasts, which upset her. T confronted defendant about
what he had done to N, and defendant reacted by shoving
T to the ground. T experienced back pain as a result of that
event and she sought medical treatment the following day.
Her medical and related expenses totaled just under $250.
T submitted a request for restitution to the district attorney’s office on December 7, 2017, and that office stamped her
request as “Received” on December 12, 2017.
Defendant entered into a plea agreement with
the state that included his agreement to plead guilty to
two counts of harassment, Counts 2 and 3, based upon the
events of October 28, 2017. Count 1, in which defendant
was charged with sexual abuse in the third degree, ORS
163.415, was dismissed. T was present at the May 10, 2018,
sentencing hearing. She made a statement to the trial court
but did not argue that she was entitled to restitution. The
state did not bring the issue of T’s request for restitution to
the court’s attention or otherwise place the issue before the
702 State v. Castillo
court. The court, thus, entered judgment without awarding
or otherwise addressing restitution.
T brought the omission to the district attorney’s
attention when she “approached him after sentencing and
asked about her restitution claim.” Several months later,
on November 5, 2018, the district attorney filed T’s Claim
of Violation of Crime Victim’s Rights. T had completed the
written claim form asserting that her right to prompt restitution had been violated and requesting that she be paid
restitution for her losses as a remedy for that violation. A
copy of the request for restitution that she had submitted to
the district attorney’s office in December 2017, six months
prior to sentencing, was attached to the Claim of Violation.
On December 27, 2018, the trial court held a hearing to address T’s claim and, specifically, the timeliness of
her restitution request. Defendant argued that the request
was untimely under two statutory provisions. First, defendant objected under ORS 137.106, because the district attorney had not presented evidence of T’s damages at sentencing and had not established good cause for a continuance
beyond the 90-day deadline after entry of judgment. Second,
defendant objected under ORS 147.515(1), because T had not
asserted her claim of constitutional rights violation within
30 days of the date when she knew or reasonably should
have known that her right to restitution as a crime victim
had been violated.
The trial court concluded that T had properly and
timely asserted her claim of constitutional violation. The
court, therefore, scheduled and held a restitution hearing at
which it awarded her restitution. On appeal, defendant challenges the court’s authority to award restitution, but he does
not challenge the amount of restitution itself. He argues, as
he did below, that T’s restitution request was untimely and
that the trial court, therefore, lacked authority to order it.
We agree with defendant.
Article I, section 42(1)(d), of the Oregon Constitution
provides, in part:
“Rights of victim in criminal prosecutions and juvenile
court delinquency proceedings.
Cite as 313 Or App 699 (2021) 703
“(1) … [T]he following rights are hereby granted to
victims in all prosecutions for crimes and in juvenile court
delinquency proceedings:
“…
“(d) The right to receive prompt restitution from the
convicted criminal who caused the victim’s loss or injury[.]”
ORS 137.106 provides the procedural framework by which
the district attorney is required to investigate and pursue
restitution for victims of crime. As pertinent here, that statute provides:
“(1)(a) When a person is convicted of a crime, or a violation as described in ORS 153.008, that has resulted in
economic damages, the district attorney shall investigate
and present to the court, at the time of sentencing or within
90 days after entry of the judgment, evidence of the nature
and amount of the damages. The court may extend the time
by which the presentation must be made for good cause. If
the court finds from the evidence presented that a victim
suffered economic damages, in addition to any other sanction it may impose, the court shall enter a judgment or supplemental judgment requiring that the defendant pay the
victim restitution in a specific amount that equals the full
amount of the victim’s economic damages as determined
by the court. The lien, priority of the lien and ability to
enforce the specific amount of restitution established under
this paragraph by a supplemental judgment relates back to
the date of the original judgment that is supplemented.”
ORS 137.106 (emphasis added). When the district attorney
does not present evidence of the victim’s damages within
90 days after entry of judgment and does not request or
receive a good cause extension of time in which to do so, the
victim may effectuate his or her constitutional right to restitution according to the procedures set forth in ORS 147.500
to 147.550. State v. Thompson, 257 Or App 336, 342,
306 P3d
731, rev den,
354 Or 390 (2013).
ORS 147.502(1) provides that “[a] victim may assert
a claim under ORS 147.500 to 147.550 personally, through
an attorney or through an authorized prosecuting attorney.”
ORS 147.515(1) provides the following timeframe for such
claims:
704 State v. Castillo
“A victim who wishes to allege a violation of a right
granted to the victim in a criminal proceeding by Article I,
section 42 or 43, of the Oregon Constitution, shall inform
the court within 30 days of the date the victim knew or
reasonably should have known of the facts supporting the
allegation. The victim shall describe the facts supporting
the allegation and propose a remedy.”
Where, as here, the victim “informs the court of a facially
valid claim on a form” prescribed by the Chief Justice of
the Supreme Court, then the court must issue a show cause
order and schedule a hearing. ORS 147.515(3).
The state acknowledges that the district attorney
“did not request restitution for [T] within the 90-day statutory deadline” imposed by ORS 137.106(1)(a). Instead, the
state “requested that the trial court impose restitution in
[T’s] favor as a remedy for a violation of [her] right to ‘prompt
restitution’ under Article I, section 42(1)(d), of the Oregon
Constitution.” And, because “ORS 147.504(2)(a) provides that
the procedural requirements for filing constitutional claims
under Article I, section 42, do not apply when a prosecutor is
asserting a victim’s right to restitution[,]” the state argues
that it was not error for the court to award T restitution as a
remedy for the constitutional violation notwithstanding the
filing of that claim beyond the 30-day limit imposed by ORS
147.515(1). ORS 147.504(2) provides that
“[n]othing in ORS 147.500 to 147.550:
“(a) Affects the authority granted by law to the prosecuting attorney to assert the public’s interest, including but
not limited to:
“(A) Asserting rights granted to victims by law; and
“(B) Investigating and presenting to the court evidence relating to restitution.”
As we understand it, the state’s position is that ORS
147.504(2)(a) provides a procedural mechanism by which a
victim may be awarded restitution in a criminal case and
that, under that statutory provision, the 90-day time limitation of ORS 137.106 and the 30-day time limitation of
ORS 147.515 do not apply. But the state’s reading of ORS
147.504(2)(a) is not correct.
Cite as 313 Or App 699 (2021) 705
When we interpret a statute, our goal is to discern
the intent of the legislature. State v. Gaines, 346 Or 160, 171-
72,
206 P3d 1042 (2009). To do that, we examine the statute’s text and context, and we may examine any relevant
legislative history.
Id. In the absence of specific definitions
provided by the legislature, when the language at issue
includes “words of common usage,” we look to the plain, natural, and ordinary meaning of those words. PGE v. Bureau
of Labor and Industries,
317 Or 606, 611,
859 P2d 1143
(1993). We often use dictionaries for that purpose. Baker v.
Croslin,
359 Or 147, 156,
376 P3d 267 (2016).
At issue is the meaning of the phrase “[n]othing in
ORS 147.500 to 147.550 … [a]ffects the authority granted
by law to the prosecuting attorney to … [a]ssert[ ] rights
granted to victims by law[.]” ORS 147.504(2)(a) (emphases
added). “To affect” means “to act upon” or “to produce an
effect.” Webster’s Third New Int’l Dictionary 35 (unabridged
ed 2002). “[A]uthority” means “justifying grounds: basis,
warrant.” Id. at 146. Given those definitions, a reasonable
and plain reading of ORS 147.504(2)(a) is that nothing in
ORS 147.500 to 147.550 should be read to produce an effect
on or to impact—one way or the other—the underlying basis
of the prosecuting attorney’s obligation to bring a claim on a
crime victim’s behalf. It does not, however, relieve the state
of the time limitations for bringing such claims.
When the state seeks restitution on behalf of a
crime victim under ORS chapter 137, it does so by carrying out its independent obligation to investigate and present evidence of economic damages caused by the defendant
within the criminal case itself—regardless whether the victim requests restitution. The 90-day filing limitation built
into that statutory mechanism, by its plain text and context, applies to the district attorney prosecuting the criminal case. The state does not dispute that. It does, however,
rely upon State v. Rieker, 302 Or App 613, 616,
461 P3d 1083
(2020), where we affirmed an award of restitution ordered
outside the statutory 90-day period of limitation, concluding that the victim had an independent constitutional right
to pursue restitution outside that period.
Id. at 614-17.
However, in Rieker, we declined to consider the defendant’s
argument that the trial court erred in imposing restitution
706 State v. Castillo
without considering the procedures set forth in ORS 147.500
to 147.550, because we concluded that the defendant had not
preserved that argument for appeal.
Id. at 617. Here, the
parties agree that defendant preserved his argument under
ORS 147.500 to 147.550. Rieker is, therefore, inapposite.
When the state seeks restitution on behalf of a crime
victim under ORS chapter 147, it is at the victim’s request,
and in the context of a claim of constitutional violation.1
In that posture, the state is seeking restitution in a representative capacity for the benefit of the crime victim who
incurred expenses as a result of the crime and the alleged
violation that resulted in a denial of the victim’s constitutional right to receive prompt restitution. The state argues
that, because the district attorney filed and presented T’s
constitutional claim on T’s behalf, under State v. Gallegos,
302 Or App 145,
460 P3d 529, rev dismissed,
366 Or 382
(2020), it was permitted to assert T’s rights “outside of the
statutorily prescribed procedures set forth in ORS 147.500
through 147.550.” But, Gallegos did not specifically concern
the 30-day time limitation of ORS 147.515(1) and its holding
was simply that the trial court’s failure to follow the procedures outlined in ORS 147.500 to 147.550 when it awarded
restitution outside the 90-day limit of ORS 137.106 without
good cause did not constitute plain error. Again, the state
does not dispute preservation here, distinguishing this case
from Gallegos, and limiting its value to our analysis.
The state also does not dispute that T’s claim that
her right to prompt restitution was violated is subject to the
30-day limit of ORS 147.515(1). And, other than its argument under ORS 147.504(2), which, as we have explained, is
not correct, the state points to no other authority supporting its argument that the 30-day limitation does not apply
simply because the district attorney, rather than T appearing pro se, filed T’s right to prompt restitution claim. While
1
An “authorized prosecuting attorney” may only assert a crime victim’s restitution rights under ORS chapter 147 when the victim requests the prosecuting
attorney’s office to do so by filing a Claim of Violation of Crime Victim’s Rights. An
“[a]uthorized prosecuting attorney” is a “prosecuting attorney who, at the request
of a victim, has agreed to assert and enforce a right granted to the victim by section 42 or 43, Article I of the Oregon Constitution.” ORS 147.500(1). And, a “[p]rosecuting attorney” is a “district attorney as defined in ORS 131.005.” ORS 147.500(9).
Cite as 313 Or App 699 (2021) 707
the significance of enforcing crime victims’ rights is clear,
especially given that such rights enjoy protection under
the Oregon Constitution, the law provides time limitations
beyond which even persons with legitimate constitutional
claims can no longer seek redress for the harm they have
suffered. See Sizemore v. Keisling,
164 Or App 80, 87,
990
P2d 351 (1999), rev den,
330 Or 138 (2000) (“The function
of time limits is to promote the finality of legally significant acts and omissions against the contingency of future
claims.”); Evans v. Finely,
166 Or 227, 238,
111 P2d 833 (1941)
(“Statutes of limitation are no doubt passed to promote the
general welfare. The mischief which they are intended to
remedy ‘is the general inconvenience resulting from delays
in the assertion of a legal right which it is practicable to
assert.’ … But the question whether such mischief exists
and the means to be taken to curb it is for the legislature, not
the courts.” (Internal citations omitted.)); Ketchum v. State
of Oregon,
2 Or 103, 106 (1864) (“Statutes of limitations are
intended to be statutes of repose, to prevent litigation; and
where one has slept … with a full knowledge of his rights
… it is eminently proper that the law should expressly
intervene, and say to the plaintiff that his sleeping has been
too long, and the advantage now sought too grossly faulty to
be encouraged.”). And, importantly, the right in question is
the right to prompt restitution. Our opinion today does not
address other procedures that may be available for T to pursue compensation for her expenses and injuries.
The state did not meet the time limitations of ORS
chapters 137 or 147. It admits the former and, as to the latter,
it is clear that, whether T knew or should have known that
her right to prompt restitution had been violated when she
appeared for sentencing in May 2018 or when she brought
the sentencing omission to the district attorney’s attention
shortly after that hearing, the date on which the state filed
T’s constitutional claim was well beyond the 30-day limit
imposed by ORS 147.515(1). Her claim was time-barred, and
ORS 147.504(a)(2) did not empower the district attorney to
file that claim for T when T was barred from filing it herself.
Supplemental judgment requiring defendant to pay
$240.50 in restitution reversed; otherwise affirmed.
