315 ORAPP 692 - State v. Kiemtore

                                  692

    Submitted October 7; remanded for resentencing, otherwise affirmed
                            November 17, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                  JOSAPHAT K. KIEMTORE,
                     Defendant-Appellant.
                 Umatilla County Circuit Court
                     18CR74224; A171749

501 P3d 93



   Patricia A. Sullivan, Senior Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erin J. Snyder Severe, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug M. Petrina, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
   PER CURIAM
   Remanded for resentencing; otherwise affirmed.
Cite as

315 Or App 692

(2021) 693

PER CURIAM
Defendant was convicted after a jury trial of six
counts of recklessly endangering another person, ORS
163.195. We conclude, as the state concedes, that the trial
court plainly erred when it imposed the statutory maximum
punitive fine on each count and then also imposed a compensatory fine on Count 1, and we exercise our discretion
to correct that error by remanding for resentencing. As we
explain, that obviates the need to address the remaining
assignments of error, which can be addressed in the first
instance on remand.
Here, the trial court imposed a punitive fine of
$6,250 on Count 1 under ORS 161.635(1)(a), suspended
execution of $6,000 of that fine, and ordered defendant to
pay additional compensatory fines totaling $2,500 under
ORS 137.101(1). Thus, the trial court imposed a total fine of
$8,750 on Count 1. The state concedes that the trial court
plainly erred in imposing the compensatory fine because
the amount of the punitive fine combined with the amount
of the compensatory fine exceeded the statutory maximum
fine for the offense. See ORS 161.635(1)(a) (maximum fine for
Class A misdemeanor is $6,250). Furthermore, because the
court imposed the maximum punitive fine on all six counts,
this is not a case in which the court could have reached the
same result by attaching the compensatory fine to a different count. Given those circumstances, we exercise our discretion to correct the error because the gravity of the error
and the ends of justice weigh in favor of doing so and defendant had no plausible strategic reason for failing to object to
the fine. See State v. Nichols,

281 Or App 658, 660

383 P3d 988

 (2016) (exercising discretion to correct plainly erroneous
compensatory fine for similar reasons).
         Our disposition obviates the need to address defendant’s other assignments of error because the case is being
remanded for resentencing, and the trial court can address
them then if necessary. State v. Colgrove,

308 Or App 441

, 445-
46,

480 P3d 1026

, rev allowed,

368 Or 347

 (2021) (not reaching additional claims because the case was being remanded
for resentencing under ORS 138.257(4)). Additionally, we
decline to address the remaining assignments of error
694                                          State v. Kiemtore

because the same sentencing issues might not arise again
or at least might not arise in the same form. See, e.g., State v.
Parham,

302 Or App 179, 180

456 P3d 690

 (2020) (remand
for resentencing “obviate[d] the need to address defendant’s
remaining claims of sentencing errors because the issues
they concern may not arise on remand”).
         Remanded for resentencing; otherwise affirmed.