State v. Halvorson

                                       656

 Submitted on remand from the Oregon Supreme Court February 9; portion of
judgment awarding restitution to victims for attorney fees incurred in criminal
 case reversed, remanded for resentencing, otherwise affirmed March 22, 2023


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   JOHN OLAF HALVORSON,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                       16CR27788; A169687
                                    

    On remand from the Supreme Court for reconsideration in light of State v.
Fox, 

, 

 (2022), the Court of Appeals reconsidered its conclusion with respect to victims’ attorney fees in its opinion in State v. Halvorson, 

, 

 (2021). In Fox, the Supreme Court held that “economic
damages,” as that term is defined in ORS 137.103(2)(a), does not include attorney
fees that a victim chooses to incur in obtaining restitution in a criminal matter.
Held: On reconsideration, the Court of Appeals applied the reasoning in Fox and
reversed the award of restitution insofar as it included victims’ attorney fees
related to the criminal case.
    Portion of judgment awarding restitution to victims for attorney fees incurred
in criminal case reversed; remanded for resentencing; otherwise affirmed.



   On remand from the Oregon Supreme Court, State v.
Halvorson, 

, 

 (2022).
   Eric L. Dahlin, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sara Laidlaw, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
   Before Aoyagi, Presiding Judge, and Lagesen, Chief Judge,
and Kamins, Judge.
   LAGESEN, C. J.
   Portion of judgment awarding restitution to victims for
attorney fees incurred in criminal case reversed; remanded
for resentencing; otherwise affirmed.
Cite as 

 (2023)                              657

        LAGESEN, C. J.
        This criminal appeal is before us on remand from
the Supreme Court, which vacated and remanded our previous decision, State v. Halvorson, 

, 

 (2021) (Halvorson I), for reconsideration in light of State
v. Fox, 

, 

 (2022) (Fox II). State v.
Halvorson, 

, 

 (2022) (Halvorson II).
For the following reasons, we now reverse the trial court’s
judgment insofar as it awarded restitution to defendant’s
victims for attorney fees incurred for representation in this
criminal case and remand for resentencing. We otherwise
adhere to our prior decision and affirm the balance of the
judgment on appeal.
         The relevant facts are provided in our previous
decision. We provide them here only as needed for context.
This criminal case arose out of defendant’s act of forging a
prenuptial agreement to gain advantage in three civil cases
involving businesses owned by his ex-wife’s family. That
conduct resulted in contempt proceedings against defendant, followed by criminal charges in this case; defendant
ultimately was convicted of two counts of identity theft and
one count of first-degree forgery. The trial court awarded
restitution to the victims for several categories of attorney
fees, including for attorney fees incurred for representation
in the criminal case.
         Defendant appealed, challenging, among other things,
the award of restitution for the attorney fees incurred in relation to the criminal case. We rejected that challenge relying
on our decision in State v. Fox, 

, 

 (2021) (Fox I). Halvorson I, 

.
In Fox I, we held that the trial court permissibly awarded
restitution for the victims’ attorney fees that they incurred
when they hired a private attorney to assist them and guide
them through the criminal case. Fox I, 

-
27. We reasoned that “it is reasonably foreseeable that a victim would hire an attorney to advise them about their rights
in a criminal case” and, “because a victim is entitled to seek
separate representation [under Article I, section 42(1)(d),
of the Oregon Constitution], the services provided by [the
victims’ attorney] that were directly related to the criminal
658                                       State v. Halvorson

case were necessarily incurred by the victims.” 

.
Based on that reasoning, we concluded that restitution was
recoverable for the victims’ attorney fees associated with the
criminal case. 

.
         The Supreme Court later reversed our decision in
Fox I. Disagreeing with our analysis, it concluded that “economic damages,” as that term is defined in ORS 137.103(2)(a),
does not include attorney fees that a victim chooses to incur
to protect the victim’s interest in obtaining restitution in a
criminal matter. Fox II, 

. Then, as noted,
the court remanded this case to us for reconsideration in
light of Fox II.
         Here, as set forth in our initial decision, the victims incurred attorney fees by “seeking to redress that
harm caused by [defendant’s] crime,” including in the criminal matter that followed the conclusion of their civil and
contempt proceedings. See Halvorson I, 

.
For the reasons explained in Fox II, the trial court erred
in awarding restitution for the attorney fees that the victims incurred to protect their interests in the criminal case.
Accordingly, we reverse the award of restitution insofar as it
includes victims’ attorney fees related to the criminal case
and remand for resentencing. The decision in Fox II does not
otherwise bear on the analysis in Halvorson I, so we otherwise affirm the judgment.
        Portion of judgment awarding restitution to victims for attorney fees incurred in criminal case reversed;
remanded for resentencing; otherwise affirmed.