317 Or. App. 267 - State v. Perez

                                   267

Argued and submitted December 3, 2021; remanded for resentencing, otherwise
                        affirmed January 26, 2022


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                OSVALDO SOCARRAS PEREZ,
                     Defendant-Appellant.
                Hood River County Circuit Court
                     18CR03223; A173213

502 P3d 787



   Karen Ostrye, Judge.
   Erik Blumenthal, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Jon Zunkel-deCoursey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before James, Presiding Judge, Lagesen, Chief Judge, and
Kistler, Senior Judge.
   PER CURIAM
   Remanded for resentencing; otherwise affirmed.
268                                             State v. Perez

        PER CURIAM
         In this criminal appeal, defendant argues that,
under governing case law, the trial court plainly erred in
imposing a compensatory fine, payable to M, the child victim. See, e.g., State v. Moreno-Hernandez,

365 Or 175

, 181-
82, 189,

442 P3d 1092

 (2019) (concluding that under ORS
137.101(1), the court may only impose a compensatory fine
payable to “victim” that has suffered “economic damages”
as defined in ORS 31.710); State v. Avalos,

308 Or App 362, 363

480 P3d 334

 (2020) (concluding that the children were
not “victims” for compensatory fine purposes because they
did not personally suffer economic damages). The state concedes that the court plainly erred but argues that we should
not exercise our discretion to correct the error, because if
defendant had objected the court could have easily avoided
the error by making the fine payable to M’s parents.
         As we did in Avalos, we accept the state’s concession.
We reject, however, the state’s argument that we should not
exercise our discretion to correct the plain error. It is not
obvious to us that the state is correct that the trial court
easily could have corrected the error and our practice in
comparable cases, guided by the Supreme Court’s approach
in Moreno-Hernandez, has been to “remand for resentencing
to allow the trial court to determine if it has ‘other permissible options available to it’ regarding the imposition of restitution or a fine.” Avalos,

308 Or App at 364

 (quoting State
v. White,

299 Or App 165

, 169,

449 P3d 924

 (2019)).
        Remanded for resentencing; otherwise affirmed.