93
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted March 17, affirmed May 17, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
CRAIG ALAN McNUTT,
aka Craig A. McNutt,
Defendant-Appellant.
Jackson County Circuit Court
14CR30680; A176513
David J. Orr, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Doug A. Petrina, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
Affirmed.
94 State v. McNutt
AOYAGI, P. J.
In 2016, defendant was convicted by nonunanimous
jury verdict of first-degree aggravated theft and ordered
to pay $10,001 in restitution as part of his sentence. The
Oregon Supreme Court reversed defendant’s conviction
under Ramos v. Louisiana, 590 US ___,
140 S Ct 1390, 1397,
206 L Ed 2d 583 (2020) (holding that it violates the Sixth
Amendment to the United States Constitution to convict
someone of a serious offense based on a nonunanimous verdict), and remanded. State v. McNutt,
366 Or 491,
464 P3d
427 (2020). Defendant was retried, convicted again, and
ordered to pay $19,620 in restitution as part of his sentence.
In a single assignment of error challenging that
restitution award, defendant argues that, under State v.
Reinke, 289 Or App 10,
408 P3d 249 (2017), rev den,
362 Or
665 (2018), the restitution findings made by the sentencing
court in the original trial were binding on the sentencing
court after retrial as “law of the case,” such that the court
erred by imposing a higher restitution amount after retrial.
See id. at 18 (following reversal of the defendant’s sentence
and remand for resentencing, the first court’s unchallenged
dangerous-offender finding was binding on remand as “law
of the case”). We do not reach the merits of defendant’s argument because we conclude that the claim of error is unpreserved. See State v. Wyatt,
331 Or 335, 341,
15 P3d 22 (2000)
(“Generally, an issue not preserved in the trial court will not
be considered on appeal.”).
At two hearings and in supplemental briefing,
the parties addressed the court’s sentencing authority on
retrial. At the first hearing, the state cited State v. Partain,
349 Or 10, 25-26,
239 P3d 232 (2010), a case involving a
remand for resentencing in which the Supreme Court
held that a trial court has authority on remand to impose
a “more severe” sentence as long as it is “not a product of
vindictiveness” and the court’s reasons affirmatively appear
on the record and are based on facts of which the first sentencing judge was unaware. The state took the position that
Partain applies to any sentencing proceedings on remand
after a successful appeal and, as relevant here, argued that
the court should impose a higher restitution amount based
Nonprecedential Memo Op:
326 Or App 93 (2023) 95
on different evidence. Defendant objected to the state’s recommended sentence, invoked double jeopardy and procedural due process principles, and argued that the court’s
restitution-related factual findings at sentencing in the
first trial were binding on the court at sentencing in the
retrial.
The court set over the hearing to read the cases
that the parties had cited and to allow time for supplemental briefing. The court explained, as relevant here, that the
retrial evidence supported imposing $19,620 in restitution
but that it was unsure whether “res judicata” precluded it
from imposing a higher amount than imposed after the
first trial. Defendant filed a supplemental brief in which he
sought to distinguish Partain on procedural grounds and
made various other arguments. The state then filed its supplemental brief, citing cases in support of its position that
the court could impose a harsher sentence on remand subject to the limitations in Partain.
The court then held another hearing, which was the
final hearing on sentencing. At the outset of that hearing,
defendant admitted that “the research” was “conclusive”
that the court did in fact have authority to sentence him to
“additional time and additional sanctions” relative to what
had been imposed after the first trial, so long as the court
puts its reasons on the record and they were adequate. He
then described “the second question”—and the subject of
the present hearing—as being whether the court “should”
do that.1 Defendant proceeded to make arguments as to why
it should not, including challenging the victim’s credibility
and arguing that the state’s sentencing recommendation
evinced vindictiveness. Those arguments were ultimately
1
Specifically, defendant stated to the court:
“Well, Your Honor, this situation presents us with two questions really.
The first question is, can the Court sentence him to additional time and additional sanctions that was not imposed on him after the first conviction? I
think that the research in that regard has been conclusive with respect to
the fact that the Court can, in fact, do that, have the authority to do that, and
what the requirements are for you to exercise that authority, specifically to
put something on the record which adequately supports such a finding and
such a ruling.
“Then the second question is, should you? And that’s what we’re talking
about now[.]”
96 State v. McNutt
unsuccessful, and the court imposed the higher restitution
amount that was proved at retrial.
Thus, at the final hearing, defendant effectively
withdrew his previous arguments that the court could not
impose a more severe sentence—including a higher restitution amount—and argued only that the court should not
do so because the victim was not credible and the state was
being vindictive. On appeal, defendant attempts to resurrect his argument that the court could not impose a higher
restitution amount and committed reversible error by doing
so, but he cannot change course again at this point. The
claim of error is unpreserved, so we cannot review it, except
on a discretionary basis for “plain” error. See ORAP 5.45(1).
Defendant has not requested plain-error review, nor would
the alleged error here qualify as “plain” in any event. See
State v. Vanornum, 354 Or 614, 629,
317 P3d 889 (2013) (stating requirements for an error to be “plain,” including that
the legal point is obvious and beyond reasonable dispute).
Affirmed.
