State v. Morrison

98                      June 5, 2024              No. 380

     This is a nonprecedential memorandum opinion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.
               TYLER ALLEN MORRISON,
                   Defendant-Appellant.
              Washington County Circuit Court
                   21CR35353; A179511

     Andrew Erwin, Judge.
     Submitted April 29, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erik Blumenthal, 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 Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
     SHORR, P. J.
   Supplemental judgment reversed; remanded for resentencing.
Nonprecedential Memo Op: 

 (2024)                99

        SHORR, P. J.
         Defendant was convicted of one count of unauthorized use of a vehicle; his conviction and sentence are
reflected in a judgment entered in April 2022. He appeals
from the supplemental judgment entered in August 2022
after a restitution hearing. In his first assignment, he
asserts that the trial court erred when it imposed a compensatory fine. In his second assignment, he contends that
the trial court erred when it imposed special conditions of
probation that were not announced in court. We conclude
that the trial court erred in both respects, and we reverse
the supplemental judgment and remand for resentencing.
         The procedural background is undisputed. The
judgment entered in April 2022 includes a $200.00 fine.
The judgment also reflects a stipulation regarding restitution: “Parties have stipulated to 900 dollars to victim
and 12,983.40 to progressive auto insurance. Hearing is to
determine the rest of the restitution that is not stipulated
to.” The trial court subsequently held a restitution hearing
on July 12 and August 11, 2022. At the outset of the hearing,
defense counsel informed the trial court that defendant disputed the valuation of certain items for which the state was
seeking a money award for restitution. The victim testified
about items that had been in his truck when the truck was
stolen and that were not recovered. After the state rested,
the trial court explained that there had been “testimony as
to what the replacement value is” but that it needed “further
information [from the state] with regard to the—any ascertainable market value” of the items. The court adjourned
the hearing with the intention that they would reconvene
in approximately 30 days and “pick it back up there” after
the state had an opportunity to figure out if there was any
ascertainable market value for the used goods.
        The hearing continued on August 11. The court
began by noting that defendant was correct that restitution
had to be based on the current market value of the victim’s
missing items. However, it then stated,
      “Rather than approach this from a restitution standpoint, I am proposing and intend, hearing nothing that
   changes my mind, to impose a $5,000 compensatory fine,
100                                                       State v. Morrison

   and that way I don’t have to do a whole lot [of] math up
   here.
     “… I know that’s kind of a bit of an end-around from
   where you figured things would be.”
The trial court also referred to certain case law as support
for the appropriateness of imposing a compensatory fine.
After an objection by defendant to the amount and further discussion with counsel, the trial court instead orally
imposed a compensatory fine of $3,986, reflecting the maximum amount requested from the evidence that the state
had submitted at the earlier portion of the hearing. The
trial court ultimately entered a supplemental judgment
containing a money award comprised of the compensatory
fine ($3,986.63) and the previously stipulated to restitution
($12,983.40), and special conditions of probation that had
not been announced in open court.
         In his first assignment of error, defendant contends
that the trial court erred in imposing a compensatory fine
in the supplemental judgment when it had already imposed
a fine in the original judgment.1 Defendant asserts that
he preserved the issue, and, in the alternative, he asks for
plain error review. The state argues that defendant did not
preserve his claim of error, but it does not dispute that the
imposition of the compensatory fine was error. However, the
state argues that we should not consider this error as plain
error because, it contends, defendant’s choice not to object
might have been a tactical choice. See State v. Revette, 

, 

, rev den, 

 (2022)
(error not plain when defendant might have had a strategic
reason not to object). The state asserts that defendant may
have deliberately chosen to accept the sentencing court’s
proposed compensatory fine alternative as a quick and
   1
       ORS 137.101(1) states:
        “Whenever the court imposes a fine as penalty for the commission of a
   crime resulting in injury for which the person injured by the act constituting
   the crime has a remedy by civil action, unless the issue of punitive damages
   has been previously decided on a civil case arising out of the same act and
   transaction, the court may order that the defendant pay any portion of the
   fine separately to the clerk of the court as compensatory fines in the case. The
   clerk shall pay over to the injured victim or victims, as directed in the court’s
   order, moneys paid to the court as compensatory fines under this subsection.
   This section shall be liberally construed in favor of victims.”
Nonprecedential Memo Op: 

 (2024)              101

simple solution to avoid either an amendment of the original
judgment to increase the amount of the punitive fine or further litigation on the proper amount that could be lawfully
imposed as restitution.
         Having reviewed the record, we agree with the state
that the specific legal argument defendant makes on appeal
was not preserved; however, we disagree that the record
supports the inference of a strategic reason on defendant’s
part not to object. On August 11, the parties appeared for
a continued hearing to determine restitution. The court
sua sponte decided to impose a compensatory fine instead
of continuing the process of determining a specific amount
of restitution. Defendant had no reason to avoid further
litigation—he appeared on August 11 for that reason—and
he continued to object to the amount of the fine. The record
supports an inference that defendant was surprised by the
turn of events, which the trial court acknowledged was
likely the case, and was faced with the trial court announcing its decision to handle the issue in a different manner
than defendant anticipated while referring to authority that
it believed supported its decision.
         We therefore conclude that it is appropriate to
consider this error as plain error and that the trial court
plainly erred in imposing a compensatory fine. See State v.
Kellison, 

, 

 (2017), rev den, 

 (2018) (plain error to impose compensatory fine in addition to punitive fine). We exercise our discretion to correct
the error for the reasons expressed in State v. Nichols, 

, 

 (2016) (exercise of discretion
to correct plain error due to gravity of error and ends of justice weighing in favor of doing so).
        In regard to disposition, defendant seeks a straight
reversal of the compensatory fine, but we agree with the
state that reversal and remand is the correct disposition.
See State v. Carachuri, 

, 

(2024) (remanding for resentencing when supplemental
judgment contained an erroneous restitution award); State
v. Travers, 

, 

 (2021) (reversing supplemental judgment and remanding for resentencing where trial court erred in including medical expenses
102                                         State v. Morrison

in the restitution order); State v. Boza, 

, 

 (2020) (reversing supplemental judgment
that contained erroneous restitution award and remanding
for resentencing to allow trial court to determine if it had
“ ‘other permissible options by which to hold the defendant
financially accountable for the consequences of his crime’ ”
(quoting State v. White, 

, 169, 

(2019)).
         In his second assignment, defendant contends that
the trial court plainly erred when it imposed special conditions of probation in the supplemental judgment outside
of defendant’s presence and without prior notice. Defendant
asks that we reverse and remand for further proceedings so
that he may address those conditions and contest, if possible,
whether the statutes allowing the trial court to enter a supplemental judgment of restitution allow the court to impose
additional special conditions of probation. The state concedes that the trial court plainly erred and that we should
reverse and remand for resentencing. We accept the state’s
concession and exercise our discretion to correct the plain
error. Consistent with our case law, the correct disposition is
to remand for resentencing. See State v. Deprati, 

, 

 (2021) (reversing bench probation fee and
remanding for resentencing when fee was not announced in
open court at sentencing). On remand, the parties will have
the opportunity, in the first instance, to make arguments
to the trial court that they did not have the opportunity to
raise.
        Supplemental judgment reversed; remanded for
resentencing.