State v. Wright-Mascorro

634                      May 15, 2024                   No. 328

   This is a nonprecedential memorandum opinion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.
       RUBEN ANTHONY WRIGHT-MASCORRO,
                Defendant-Appellant.
           Multnomah County Circuit Court
                22CR00022; A179732

   Amy M. Baggio, Judge. (Judgment August 4, 2022)
   Eric L. Dahlin, Judge. (Judgment September 14, 2022)
   Submitted March 8, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Carla E. Edmondson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
   PAGÁN, J.
   Affirmed.
Nonprecedential Memo Op: 

 (2024)                635

         PAGÁN, J.
        Defendant pleaded guilty to one count of driving
under the influence of intoxicants (DUII) and one count of
reckless driving, both misdemeanors. With regard to the
DUII count, the trial court sentenced defendant to 24 months
of misdemeanor monitored probation, two days in jail, and
a $2,000 fine, although the court suspended execution of
that fine. The fine was imposed under ORS 813.010(6)(d)
(2021), amended by Or Laws 2023, ch 498, § 3, which
provided:
      “In addition to any other sentence that may be imposed,
   the court shall impose one or more of the following fines on
   a person convicted of driving while under the influence of
   intoxicants as follows:
      “…
      “(d)(B) For a person who, within two hours after driving a vehicle, other than a bicycle, and without consuming alcohol in the intervening time period, has 0.15 percent
   or more by weight of alcohol in the blood of the person, as
   shown by chemical analysis of the breath or blood of the person made under ORS 813.100, 813.140 or 813.150, a minimum of $2,000.”
(Emphasis added.)
         On appeal, defendant’s sole assignment of error is
that the court plainly erred by imposing the $2,000 fine,
because he did not admit to his blood alcohol content (BAC)
during the plea colloquy and the state did not produce any
evidence that his BAC was equal to or greater than 0.15 percent. However, as the state correctly points out, defendant
invited any error with regard to imposition of the mandatory fine.
         After the state made a sentencing recommendation
that included a “$2,000 fine based on the blood alcohol level
being above .15,” defendant responded that “[t]he only issue
is with the DUI fine” and that he would “ask the Court to
impose it but suspend execution.” Defendant explained that
he “was going to ask for a jail sentence on [the DUII count],”
and a “brief term of bench probation on [the DUII count]
and impose the fine on that count,” in the hope that “the
636                                   State v. Wright-Mascorro

probation on [the DUII count] would terminate at the end
of any jail sentence and the Court would waive the fine at
that time.” Although the court did not impose sentence in
accordance with all of defendant’s requests, it did ultimately
agree to impose the fine as requested:
   “I’m thinking that the fairest way to proceed would be to
   have the two years of probation that I would impose but suspend the $2,000 mandatory fine, which would be required
   it sounds like based on his blood alcohol being over .15. So
   that if he stays out of trouble and complies with conditions,
   he wouldn’t have to pay that money. The driver’s license
   sanction is not something that is waivable.”
         Because defendant was actively instrumental in
bringing about the suspended fine, we reject his assignment
of error and affirm the judgment. See State v. Kammeyer,

, 

 (2009) (“Under the invited
error doctrine, a party who was actively instrumental in
bringing about an alleged error cannot be heard to complain, and the case ought not to be reversed because of it.”
(Internal citation and quotation marks omitted.)).
         Affirmed.