809
Argued and submitted September 29, 2020, remanded for resentencing
April 6, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
MATTHEW BLAKE STORM,
aka Matthew Storm,
Defendant-Appellant.
Coos County Circuit Court
18CR40975; A170211
509 P3d 132
Defendant appeals a supplemental judgment awarding restitution, entered
after he admitted that he had damaged property of the victim. Defendant contends that the court erred in ordering restitution for damages from criminal
activities of which defendant was not convicted and to which he did not admit,
as required by ORS 137.106(1)(a). Held: Defendant’s admission to damaging
the victim’s property encompassed the acts of punching the wall and, given his
concession, throwing the vacuum cleaner. The court therefore was free to make
findings regarding how much damage defendant’s punch and throw had caused
and to impose restitution for that damage in full. However, from the record and
defendant’s conviction, the punch to the wall and the throwing of the vacuum
cleaner were the only criminal acts that the trial court could find defendant had
admitted. Thus, it could not impose restitution for damage caused by any other
act or acts that defendant may have committed, whether or not they themselves
could fall within the “scope” of a criminal-mischief charge.
Remanded for resentencing.
Megan Jacquot, Judge. (Judgment December 4, 2018)
Martin E. Stone, Judge. (Supplemental Judgment
February 11, 2019)
Francis C. Gieringer, 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.
Joanna Hershey, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
810 State v. Storm
Before Mooney, Presiding Judge, and Pagán, Judge, and
DeHoog, Judge pro tempore.*
DeHOOG, J. pro tempore.
Remanded for resentencing.
______________
* Pagán, J., vice DeVore, S. J.
Cite as 318 Or App 809 (2022) 811
DeHOOG, J. pro tempore
In this criminal case, defendant appeals a supplemental judgment awarding restitution, entered after he admitted that he had damaged property of the victim. Defendant
contends that the court erred in ordering restitution for
damages from criminal activities of which defendant was
not convicted and to which he did not admit, as required by
ORS 137.106(1)(a) (2021).1 As explained below, in light of the
Supreme Court’s decision in State v. Andrews, 366 Or 65, 69,
456 P3d 261 (2020), we agree and, accordingly, reverse the
supplemental judgment and remand for resentencing.
Defendant was charged with fourth-degree assault,
ORS 163.160, harassment, ORS 166.065, and second-degree
criminal mischief, ORS 164.354, committed “on or about
May 31, 2018.” Pursuant to a plea agreement, defendant
pleaded guilty to fourth-degree assault and agreed to pay
“reasonable restitution” for the charge of second-degree
criminal mischief, although that charge, along with the
harassment charge, was dismissed. Defendant admitted
that he “unlawfully and intentionally damaged property
belonging to [the victim]” without any reasonable ground or
right to do so.
At the plea hearing, the prosecutor recited the factual basis for the plea. As relevant to the issue on appeal,
she stated only that, when a police officer arrived at the victim’s home, the victim “pointed out damage to the sheetrock
at the residence from the Defendant punching a wall with
his fist.” Later in the hearing, the court asked, “And is the
restitution for the sheetrock?” The prosecutor responded,
“Yes, your honor.” The police report described damage to a
wall near the front door as well as above a doorway in a
hallway, and photographs taken by the police officer showed
the same damage. The photographs showed that the damage above the doorway in the hallway was to the door frame.
1
In 2022, the legislature amended ORS 137.106, effective January 1, 2023.
House Bill 4075 (2022) § 1; ORS 171.022. When that amendment takes effect, the
relevant text, which is unchanged in the amended version, will appear in ORS
137.106(2)(a). All references to ORS 137.106 in this opinion are to the 2021 version of the statute.
812 State v. Storm
Defendant received the police report and photographs as
discovery, and both were later entered into evidence at the
restitution hearing.
At the restitution hearing, the victim testified about
damage that defendant had caused around May 31. She provided an estimate from a contractor to repair damage to several parts of the house, including areas other than the front
door area and the hallway door frame. She explained that
defendant had damaged the hallway door frame by throwing
a vacuum cleaner at it, destroying the vacuum cleaner and
resulting in additional damage to walls and an interior door
that the vacuum cleaner bounced into. She also described
damage to her car windshield, her iPhone, a statue, a fountain, and planter pots that she made to sell as art. She
testified that defendant caused all of that damage, which
took place over the course of 24 hours on or about May 31,
2018.
Defendant conceded that the trial court should
impose restitution for the damage noted in the police report
and photographs that he had received as discovery, which
was the damage to the sheetrock and the hallway door frame.
However, he argued that the court could not impose restitution for the “other items which [the victim] says [defendant]
broke at some point but weren’t part of this investigation,”
because “we don’t believe [defendant has] been charged with
those.” The state responded that, even though the state had
not originally identified all of the damage caused by defendant’s criminal mischief, that information would have been
presented if the case had gone to trial and, accordingly,
defendant should be required to pay restitution for all of the
damage.
The trial court noted that the criminal-mischief
charge “alleges that on or about May 31, 2018, the Defendant
intentionally damaged property belonging to [the victim].
And on or about could well be inclusive of things that happened the day before or the night before.” The court ordered
restitution for each of the items described by the victim
above, noting that those damages “are the damages that
relate to that particular criminal episode.”
Cite as 318 Or App 809 (2022) 813
Defendant appeals, contending that the trial court
erred in imposing restitution for damage other than the
damage to the sheetrock and the hallway door frame. He
contends that he admitted only the acts that caused the
damage identified in the discovery he received and that the
prosecutor described at the plea hearing. He argues that the
trial court erred in awarding restitution for the other damage, because he was not charged with, and did not admit,
acts that caused the other damage. The state responds that
all of the damage for which the trial court ordered restitution is within the scope of defendant’s admission that he
intentionally damaged the victim’s property on or about
May 31, 2018. Relying on our case law, the state asserts that
the burden was on defendant to limit his admission in some
way if he did not intend to admit to all conduct that could
fall within the scope of the admission: “[W]here, as here, the
defendant does not expressly limit his guilty plea, the portion of the information to which he pleads guilty controls the
scope of criminal activities of which he is convicted.” (Citing
State v. Kirkland, 268 Or App 420, 421-22, 427,
342 P3d 163
(2015).)2
ORS 137.106 requires an award of restitution when
three prerequisites are met: (1) criminal activities; (2) economic damages; and (3) a causal relationship between
the two. Andrews, 366 Or at 69. “Criminal activities” are
defined as “any offense with respect to which the defendant
is convicted or any other criminal conduct admitted by the
defendant.” ORS 137.103(1). As the Supreme Court recently
explained, “The restitution statute grants a court the
authority to make its own, independent, factual findings as
to the second and third prerequisites, but it does not recognize a similar authority to determine the first prerequisite—
the criminal act that the defendant committed.” State v.
2
As explained above, defendant did not plead guilty to the charge of criminal mischief; rather, he agreed to pay reasonable restitution for that charge and
admitted to it for that purpose only. However, we do not understand defendant
to argue that there is any difference between the analysis for a charge to which
a defendant pleads guilty and the analysis for a charge, like this one, that is dismissed but to which a defendant admits for purposes of imposition of restitution.
See, e.g., State v. McDonald, 291 Or App 629, 632, 636,
422 P3d 357 (2018) (applying the same analysis for a count to which the defendant had pleaded guilty and
dismissed counts for which he had agreed to pay restitution).
814 State v. Storm
Lile,
315 Or App 714, 717,
501 P3d 1079 (2021), rev den,
369
Or 211 (2022) (citing Andrews,
366 Or at 70-71).
Although Andrews involved a jury trial rather than
an admission or a guilty plea, the court’s holding in that
case affects both contexts. In Andrews, the defendant was
charged with fourth-degree assault and harassment. At
trial, the state presented evidence that the defendant had
both punched and spit on the victim, with the punch causing
damage to the victim’s dental bridge. As to the harassment
charge, the state argued in closing that the jury could base
its verdict on the defendant having spit on the victim, having punched him, or both. The jury convicted the defendant
of harassment but acquitted him of fourth-degree assault.
State v. Andrews, 295 Or App 194, 195,
433 P3d 757 (2018),
rev’d in part,
366 Or 65,
456 P3d 261 (2020).
At the restitution hearing, the state sought restitution for the damage to the dental bridge. It presented
the victim’s testimony that the defendant had punched him
in the face. The trial court reasoned that the jury could
have found that the defendant had punched the victim and
thereby caused the damage to the dental bridge. Id. at 196.
Thus, over the defendant’s objection, it ordered restitution.
Id.
The defendant appealed, arguing that “the causal
nexus [between the defendant’s act of punching the victim
and the damage to the dental bridge] is defeated because
it cannot be ascertained from the jury’s verdict that the
jury necessarily believed that defendant hit the victim, as
opposed to merely spitting on him.” Id. at 197. We rejected
that argument and, ultimately, affirmed.
First, we explained:
“Although a trial court cannot impose restitution for
damages arising out of criminal activity for which a defendant was not convicted or which a defendant did not admit
having committed, the court, in determining whether a
defendant has engaged in criminal activity that resulted
in a victim’s economic damage, may consider any evidence
that it ordinarily would at a sentencing hearing.”
Id. (internal citation, quotation marks, brackets, and ellipses
omitted). We recognized that “a trial court, in imposing
Cite as
318 Or App 809 (2022) 815
restitution, may not engage in factfinding that enlarges
the scope of a defendant’s criminal activities beyond what
the defendant was convicted of or admitted to.”
Id. at 198.
However, we reasoned that, because the jury’s verdict was
not inconsistent with a determination that the defendant
had punched the victim—that is, either the spitting or the
punch, both of which were in evidence, could have satisfied
the offensive-physical-contact element of harassment—the
trial court had not found facts that enlarged the scope of the
defendant’s criminal activities.
Id.
The Supreme Court disagreed. The issue as framed
by the court was “how a trial court is to determine, from
a defendant’s conviction, whether the defendant committed
the criminal act on which the state relies for an award of
restitution.” Andrews, 366 Or at 69. The court explained
that, in the state’s view, a “trial court is permitted to conclude that a defendant committed a criminal act when there
is evidence of that act in the record and that evidence is
sufficient to support the jury’s guilty verdict.”
Id. That is,
echoing our holding in the case, the state argued that “a
defendant’s conviction determines the ‘scope’ of a defendant’s
criminal activity, and the trial court is permitted to find
that the defendant committed any act within that scope.”
Id.
In concluding otherwise, the Supreme Court explained
that, under ORS 137.106(1)(a), trial courts have “authority
to make [their] own, independent, factual findings as to”
two of the three elements necessary for a restitution award:
“a victim’s economic damages” and “the causal relationship
between a defendant’s criminal activities and the economic
damages suffered by the victim.” 366 Or at 70. Significantly,
however, “the restitution statute does not grant [a trial
court] similar authority to make its own independent factual findings about … the criminal act that the defendant
committed.”
Id. at 71. The court explained that, in State v.
Lefthandbull,
306 Or 330,
758 P2d 343 (1988), it had held
that “more than a bald conviction is necessary” to allow
a court to determine what criminal act a defendant has
committed:
“In Lefthandbull, the defendant had pleaded guilty to an
attempt to manufacture a controlled substance but had not
816 State v. Storm
admitted committing any specific acts. This court held that
the defendant could not be ordered to pay restitution for
damages caused by the manufacturing process because the
state had not ‘proved’ that the defendant had committed
the criminal act on which the restitution claim was based.
We explained that, ‘[b]ecause defendant pleaded guilty to
the attempt, … no particular acts were proved at trial.
Nor did [the defendant] admit any specific acts at the plea
proceeding or the sentencing hearing.’ ”
Andrews,
366 Or at 71 (quoting Lefthandbull,
306 Or at
332-33 (brackets and ellipsis in Andrews; internal citations
omitted)).
The court summarized the principle it had articulated in Lefthandbull, as applied in the jury-trial context:
“[A] trial court must be able to determine from the record at
trial, not only that the defendant was convicted of a crime,
but also that the defendant committed a specific criminal
act—the act on which the restitution claim is based. Put
differently, ORS 137.106 does not grant trial courts authority to make their own factual findings about whether a
defendant committed such an act; trial courts must look
to the record and the defendant’s conviction to make that
determination.”
Andrews, 366 Or at 71-72. Given that limitation on a court’s
authority to make findings about what criminal act or acts
a defendant has committed, the court held that if, after a
jury trial, “there is nothing in the record or the conviction to
indicate that the jury found that the defendant committed
the particular criminal act that is necessary to the decision
of the sentencing court, then the sentencing court cannot
conclude that the jury made that finding.”
Id. at 73.
Returning to its holding in Lefthandbull, the
Supreme Court explained that, in that case, it had “concluded
that the sentencing court did not have authority to award
restitution because the court could not determine, from the
defendant’s guilty plea, the particular criminal act that the
defendant had committed.” Andrews, 366 Or at 73-74 (citing
Lefthandbull,
306 Or at 333). The court elaborated:
“What is important about Lefthandbull is how this court
treated the defendant’s conviction. We did not consider
Cite as 318 Or App 809 (2022) 817
whether the particular act for which restitution was sought
was within the ‘scope’ of the crime to which [the] defendant had pleaded guilty, or whether the defendant’s guilty
plea could have been based on an act that would have
permitted restitution. Instead, we required that the trial
court be able to determine that the state had ‘proved’ such
an act.”
Andrews,
366 Or at 74 (emphasis in original).
In summation, the court held:
“ORS 137.106(1)(a) does not permit an award of restitution
unless a trial court can determine, from the record and
the defendant’s conviction, that the defendant committed
the act that resulted in the victim’s damages. A conviction
may establish that a defendant committed a crime without
establishing that the defendant committed any particular
act. See Lefthandbull, 306 Or at 334 (upholding the defendant’s conviction for attempt to manufacture a controlled
substance, but not award of restitution).”
Andrews,
366 Or at 76.
Thus, under ORS 137.106(1)(a), a trial court lacks
authority to make findings about the defendant’s specific
criminal act or acts; instead, “the record and the defendant’s
conviction” must establish “that the defendant committed
the act that resulted in the victim’s damages.” Andrews, 366
Or at 76. The Supreme Court in Andrews therefore rejected
our own approach—and the approach relied on by the trial
court in this case and defended by the state on appeal—
which allowed a sentencing court to make factual findings as to what acts were within the “scope” of the crime
of conviction or to which the defendant had pleaded guilty.
Andrews,
366 Or at 74 (noting that, in Lefthandbull, the
court had “required that the trial court be able to determine that the state had ‘proved’ ” a particular criminal act;
“[w]e did not consider whether the particular act for which
restitution was sought was within the ‘scope’ of the crime
to which defendant had pleaded guilty”);
id. at 76 (rejecting the state’s argument that the fact of a conviction allows
the trial court to find that a defendant committed any act
within the scope of the crime as charged; “ORS 137.106(1)(a)
does not permit an award of restitution unless a trial court
818 State v. Storm
can determine, from the record and the defendant’s conviction, that the defendant committed the act that resulted in
the victim’s damages.”).
In the context of a guilty plea or admission, then, the
question is whether the trial court can determine—based
on the existing record and the crime to which the defendant has pleaded guilty—that the defendant has admitted
to engaging in a specific criminal act or acts; just as it does
in the jury-trial context, the trial court lacks authority to
make findings about the defendant’s criminal act or acts.
Andrews, 366 Or at 71 (“[T]he restitution statute does not
grant [a trial court] authority to make its own independent factual findings about … the criminal act that the
defendant committed.”); see also
id. (“ ‘[B]ecause defendant
pleaded guilty to the attempt, … no particular acts were
proved at trial. Nor did [the defendant] admit any specific
acts at the plea proceeding or the sentencing hearing.’ ”
(Quoting Lefthandbull,
306 Or at 333 (brackets and ellipses
in Andrews; emphasis added).)).
Here, defendant admitted that, on or about March 31,
he intentionally damaged property belonging to the victim. The factual basis for the admission was that defendant
punched the wall with his fist and damaged the sheetrock.
Defendant received discovery showing that there was also
damage to the hallway door frame.
At the restitution hearing, the state presented
testimony from the victim that defendant had caused the
damage to the sheetrock and the door frame. As to the door
frame, the victim testified that defendant damaged it by
throwing a vacuum cleaner at it, which broke the vacuum
cleaner and also caused other damage to the walls and an
interior door. She also testified that, through different acts
committed within about 24 hours of those acts, defendant
had damaged other parts of the house, her car windshield,
her iPhone, and planter pots. Defendant did not testify at
the restitution hearing.
From that record and defendant’s conviction, the
acts that the court could determine that defendant had
admitted were the act of punching the wall by the front
door and—in light of defendant’s concession—the act that
Cite as 318 Or App 809 (2022) 819
damaged the hallway door frame, namely, throwing the
vacuum.3
The precise boundary between a trial court’s permissible finding that an admitted or proved act caused certain damage and an impermissible finding that a defendant
committed a specific criminal act may, in some cases, be
difficult to discern. Our recent decision in Lile, 315 Or App
714, provides a helpful comparison to this case, although it,
like Andrews, involved a jury trial. In Lile, a jury convicted
the defendant of criminal mischief for kicking the door of
the victim’s car. After the trial court imposed restitution for
the cost of repairing a dent in the car door, the defendant
appealed, contending that the jury could have found that
his kick merely scuffed, but did not dent, the car door; consequently, the defendant argued, under Andrews, the court
had engaged in impermissible factfinding about the criminal act. Lile,
315 Or App at 716-17.
We disagreed. We explained that Lile was different from Andrews because, in finding the defendant guilty
of criminal mischief—intentional damage to property of
another—the jury had necessarily found “that defendant
kicked the car and the kick caused damage.” Lile, 315 Or
App at 318. Under those circumstances, the trial court was
merely making a finding about causation—how much damage the defendant had caused by kicking the victim’s car
door—when it found that the kick had caused the dent.
Id.
Accordingly, the trial court had not erred in imposing restitution for the dent.
Id.
3
Under the framework for restitution that the Supreme Court articulated
in Andrews, we understand defendant’s concession, both in the trial court and
on appeal, that the court could impose restitution for the damage to the door
frame, to necessarily carry with it a concession that he admitted to the act that
caused the damage to the door frame. To the extent that defendant advances a
standalone argument that the court cannot impose restitution for any damage
that is not identified in the factual basis for the plea or in discovery, we reject
that argument. As explained in the text, under Andrews, the question that must
be answered from the record and the defendant’s conviction is what criminal act
or acts a defendant has committed; the extent of the damages caused by that act
or acts is a matter that may be resolved through factfinding by the trial court.
Defendant also argues about exactly which items constitute the “record” for
purposes of determining what a defendant has admitted. Because the precise
contours of the “record” do not affect the outcome here, we do not address that
question in this opinion.
820 State v. Storm
Here, defendant’s admission to damaging the victim’s property encompassed the acts of punching the wall and
(given the concession) throwing the vacuum cleaner. Thus,
as in Lile, here, the court was free to make findings regarding how much damage the punch and the throw caused and
to impose restitution for that damage in full. That damage
included the damage to the sheetrock, the door frame, the
vacuum, and the walls and interior door that the vacuum
struck. However, from the record and defendant’s conviction, the punch to the wall and the throwing of the vacuum
cleaner were the only criminal acts that the trial court could
find defendant had admitted. Thus, it could not impose restitution for damage caused by any other act or acts that
defendant may have committed, whether or not they themselves could fall within the “scope” of a criminal-mischief
charge. It follows that the trial court erred in ordering restitution for damage to other parts of the house, the victim’s
car windshield, her iPhone, the statue, the fountain, and the
planter pots. We, therefore, remand for resentencing.
Remanded for resentencing.
