State v. King

782                   April 10, 2024              No. 221

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                 AKIAZ MARQIEZ KING,
      aka Akiaz Marquiez King, aka Akiaz M. Stewart,
                   Defendant-Appellant.
             Multnomah County Circuit Court
                  19CR60460; A179565

  Adrian L. Brown, Judge.
  Submitted March 8, 2024.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Nora Coon, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
  SHORR, P. J.
  Affirmed.
Nonprecedential Memo Op: 

 (2024)           783

        SHORR, P. J.
         Defendant appeals from a supplemental judgment
imposing restitution. He was charged with reckless driving and third-degree escape stemming from an occasion on
which he was riding his motorcycle. During the incident,
defendant crashed into the side of a car being driven by J.
Pursuant to a negotiated plea agreement, defendant pleaded
guilty to the escape charge, and the state dismissed the
reckless driving charge. The plea agreement also provided
that defendant “[s]tipulate[d] to causation and liability for
restitution.” At a restitution hearing, the court imposed restitution for economic losses suffered by J. On appeal, defendant argues that the trial court plainly erred by imposing restitution for conduct that defendant had not pleaded
guilty to or otherwise admitted. The state responds that the
unpreserved error does not constitute plain error, defendant
invited the error, and that in all events, we should not exercise our discretion to review it. We conclude that the trial
court did not plainly err. We therefore affirm.
         Defendant argues that restitution must be based
on conduct that the defendant pleaded guilty to, or that he
otherwise admitted. Because the reckless driving charge
was dismissed and he did not expressly admit to the criminal conduct of reckless driving, defendant contends that
there is not a sufficient factual basis to connect J’s economic damages to the escape charge, and the charge that
could have encompassed it, reckless driving, was dismissed.
Among other responses, the state argues that defendant’s
stipulation amounted to an admission to the criminal conduct that led to J’s economic damages.
         Defendant disputes the effect of the stipulation in
the plea agreement and disputes the effect of the multiple
occasions on which the prosecutor referred in open court to
defendant’s stipulation to causation and liability for purposes of restitution. The state also notes that the prosecutor
represented to the court that the parties had stipulated that
J was a “victim” for purposes of restitution. At the changeof-plea hearing, defendant did not object to or dispute in
any way the prosecutor’s statements about the causation
and liability stipulation and the stipulation that J was a
784                                                State v. King

victim. Likewise, at the restitution hearing, the parties did
not address causation or liability. Defendant disputed the
amount of restitution, but never argued that he had not stipulated to those facts, or that the stipulation could not support the imposition of restitution, nor did he dispute that J
was a victim.
          We conclude that the trial court did not plainly err.
It is not plain that defendant’s stipulation did not constitute
an admission that would permit imposition of restitution
for J’s economic damages. “A stipulation is the functional
equivalent of a judicial admission; indeed, the two terms are
sometimes used interchangeably. However denominated, it
is a statement by which one party waives the right to require
the other party to prove a particular fact.” State v. Porter,

, 

, (2005) (citations omitted). “Once stipulated, a fact is conclusively proven and can
be withdrawn only for fraud, mutual mistake or the actual
absence of consent[.]” 

 (internal quotation marks and citations omitted). Defendant entered into the negotiated plea
agreement in which one charge was dismissed and, with
the advice of counsel, he signed the agreement containing
the stipulation. Because a stipulation dispenses with the
need to prove a fact, and once stipulated, the fact is “conclusively proven,” it is not plain that a trial court would err if it
treated the stipulation as having at least the same effect as
an admission to the criminal conduct that led to the victim’s
damages.
         Affirmed.