State v. Barr

242                 February 28, 2024              No. 143

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
                JUSTIN ALLEN BARR,
                  Defendant-Appellant.
               Linn County Circuit Court
                 22CR19558; A179003

  Brendan J. Kane, Judge.
  Submitted January 24, 2024.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
   Before Aoyagi, Presiding Judge, Joyce, Judge, and
Jacquot, Judge.
  AOYAGI, P. J.
  Remanded for resentencing; otherwise affirmed.
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 (2024)                             243

        AOYAGI, P. J.
         Defendant was convicted of numerous property
crimes based on a series of incidents on April 21, 2022, at
several businesses in Linn County. On appeal, he raises
three assignments of error. Defendant argues that the trial
court erred by (1) denying his motion for a judgment of
acquittal on Counts 6, 7, and 8; (2) imposing upward durational departure sentences on Counts 2, 3, 4, 5, 10, and 11;
and (3) ordering payment of “per diem” fees as part of his
sentences on Counts 1, 6, 7, 8, 9, 12, 13, and 14. We reject
the first two arguments with minimal written discussion,
but we agree on the third issue and, accordingly, remand for
resentencing.
         Defendant first challenges the denial of his motion
for a judgment of acquittal on Counts 6, 7, and 8, which
pertain to crimes committed at the Tangent Inn. The crux
of defendant’s argument is that the evidence was legally
insufficient to prove that the person shown on the Tangent
Inn’s surveillance video was him. Having reviewed the trial
record “in the light most favorable to the state to determine
whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found
the essential element of the crime beyond a reasonable
doubt,” State v. Cunningham, 

, 

(1994), cert den, 

 (1995), we conclude that the
evidence was legally sufficient to prove that it was defendant who committed the crimes. We therefore reject the first
assignment of error.
         Defendant next challenges the imposition of upward
durational departure sentences on Counts 2, 3, 4, 5, 10, and
11. Because he did not object at sentencing, he requests
plain-error review. See State v. Wyatt, 

, 

 (2000) (“Generally, an issue not preserved in the
trial court will not be considered on appeal.”); ORAP 5.45(1)
(providing discretion to correct a “plain” error even if unpreserved). We conclude that the alleged error is not “plain,”
because the legal point—which involves a complicated question of statutory construction—is not “obvious” and is reasonably in dispute. State v. Vanornum, 

, 

 (2013) (stating the requirements for “plain” error,
244                                             State v. Barr

one of which is that the legal point must be obvious and not
reasonably in dispute). We therefore also reject the second
assignment of error.
          In his third assignment of error, defendant contends
that the trial court erred by ordering him to pay “per diem”
fees as part of his sentences on Counts 1, 6, 7, 8, 9, 12, 13,
and 14. The court did not address per diem fees at the sentencing hearing. However, as to each misdemeanor count for
which defendant was sentenced to time in the county jail—
i.e., the eight counts listed above—the judgment provides
that “[d]efendant shall pay any required per diem fees.” The
judgment further states, as to each count, that defendant
may receive credit for time served and “has already served
this time.” On appeal, defendant argues that it was error
to include the “per diem” term in the judgment without
announcing it at sentencing, and he requests resentencing.
In response, the state neither concedes error nor defends the
term, instead arguing that the claim of error is moot or that
any error was harmless, because no per diem fees will ever
be collected in actuality.
         The trial court erred by including a previously
unannounced term in the sentencing judgment. “A criminal
defendant has the right to have their sentence announced in
open court. A trial court commits reversible error if it does
not do so, and the result is usually a resentencing.” State
v. Priester, 

, 

, rev den, 

 (2023) (internal citations omitted); see also State v.
Macy, 

, 236 n 2, 

 (2021) (“[A]
defendant is not required to preserve a challenge to a portion of a sentence that appeared for the first time in a judgment because the defendant had no opportunity to preserve
the challenge at a hearing where that sentence was never
announced.”).
         We are unpersuaded that the claim of error is moot
or that the error is harmless. For both arguments, the state
relies on the fact that defendant was given credit for time
served and, consequently, after trial went directly to prison
to serve his felony sentences, without spending any more
time in the county jail. The problem with that argument is
that ORS 169.151—which the parties agree is the apparent
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 (2024)                                                 245

source of the “per diem” fees referenced in the judgment—
allows a city or county to seek per diem reimbursement for
pretrial detention, if the person is ultimately convicted:
       “(1) A city or, notwithstanding ORS 169.150(1), a county
    may seek reimbursement from a person who is or was committed to the local correctional facility of the county or city
    upon conviction of a crime for any expenses incurred by the
    county or city in safekeeping and maintaining the person.
    The county or city may seek reimbursement:
        “(a) At a rate of $60 per day or its actual daily cost
    of safekeeping and maintaining the person, whichever is
    less, multiplied by the total number of days the person was
    confined to the local correctional facility, including, but not
    limited to, any period of pretrial detention; and
        “(b) For any other charges or expenses that the county
    or city is entitled to recover under ORS 169.150.
       “(2) The county or city may seek reimbursement for
    expenses as provided in subsection (1) of this section by filing a civil action no later than six years after the person
    from whom reimbursement is sought is released from the
    local correctional facility.”
ORS 169.151 (emphasis added).
         The record reflects that defendant was detained
pretrial in the county jail for at least 50 days. Given that
fact and the text of ORS 169.151(1)(a), we reject the state’s
closely related harmlessness and mootness arguments.1 See
Dept. of Human Services v. J. A., 

, 

 (2023) (a party asserting mootness must show that
the court’s decision will not “have a practical effect on the
rights of the parties” (internal quotation marks omitted)).
We therefore remand for resentencing, based on the error in
sentencing on Counts 1, 6, 7, 8, 9, 12, 13, and 14.
       Finally, the parties’ arguments in this case call into
doubt whether trial courts have authority to order criminal

    1
       It bears noting that, if the state is correct that defendant has no practical
liability for per diem fees, then the same would have been true on the day that
defendant was sentenced, in which case there was no reason to include that term
in the judgment. The fact that it was included therefore tends to suggest that the
court believed that defendant could be liable for per diem fees, which is consistent
with ORS 169.151(1)(a).
246                                         State v. Barr

defendants to pay per diem fees as part of sentencing. We
express no opinion on that issue, which may be raised on
remand.
       Remanded for resentencing; otherwise affirmed.