532 October 16, 2024 No. 739
This is a nonprecedential memorandum opinion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.
JAMES CAM JOHNSON, IV,
Defendant-Appellant.
Lane County Circuit Court
21CR57083; A180372
Debra K. Vogt, Judge.
Submitted September 5, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David Sherbo-Huggins, Deputy Public
Defender, Office of Public Defense Services, filed the brief
for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
JOYCE, J.
Affirmed.
Nonprecedential Memo Op: 335 Or App 532 (2024) 533
JOYCE, J.
Defendant, driving drunk, caused a multi-vehicle
crash in which three people were killed and others were
injured—one seriously. Defendant pleaded guilty to driving
under the influence of intoxicants; three counts of second-degree manslaughter; third-degree assault; second-degree
criminal mischief; and two counts of fourth-degree assault.
The plea agreement spelled out the sentence that the state
would seek and left restitution open. The trial court later
entered an amended judgment imposing the full amount of
restitution that the state requested. Defendant now appeals
that judgment, seeking reversal on the basis that there is
no evidence in the record to support the restitution award.
The state argues that the error, if any, is unpreserved, was
invited, and, in any event, does not constitute plain error.
We affirm.
The relevant facts are few. After the court accepted
defendant’s guilty pleas, it asked the prosecutor about restitution. The prosecutor explained that defendant and the
state had agreed on the following: The state would have
90 days to file its restitution motion, and defendant would
have an extended time—60 days—to respond. The trial
court, at the end of the change-of-plea and sentencing hearing, repeated back to the parties its understanding of their
agreed restitution procedure:
“I will give the state 90 days to submit a restitution
amount. I will give your lawyer 60 days after that to look
into that amount to see if she agrees. If she does not agree
with the amount, we can have a restitution hearing to figure
out what you truly owe. Whatever you owe will be payable
at the direction of your post-prison supervisor, so once you
are out you will figure out what is owed, and talk to your
post-prison supervisor concerning what is ow[ed].”
(Emphasis added.) Thus, the trial court understood that, if
defendant did not object within 60 days, that meant that he
did not contest the restitution amount and no hearing would
be necessary. Defendant said nothing in response to that
understanding.1
1
The judgment imposing the sentence similarly included a provision stating
that the state had 90 days to file a restitution schedule and that defendant would
534 State v. Johnson
The prosecutor filed the restitution schedule within
90 days. Defendant did not file any response within the
60 days thereafter. After 115 days without a response, the
trial court entered an amended judgment awarding the full
amount of restitution that the state had requested. That is
the judgment that defendant challenges on appeal, arguing
that the award is not supported by evidence that the restitution recipients were victims who suffered economic losses
due to defendant’s criminal activities.
The state in turn argues that defendant, having
made no objection below within the time agreed, cannot
raise an objection on appeal to the lack of evidence in the
record. The state argues that defendant invited the error, if
any, and that it is not reviewable as plain error.
We are unpersuaded that defendant affirmatively
invited the error, but we agree with the state that the error,
if any, is not plain. To constitute plain error, the error must
be one of law that is obvious, not reasonably in dispute,
and the error must appear on the face of the record. State
v. Gornick, 340 Or 160, 166,
130 P3d 780 (2006). Whether
a claim of error is apparent on the face of the record is a
question of law.
Id. at 167. For that requirement to be met,
among other things, the reviewing court cannot be forced to
choose between competing inferences.
Id. If one of the competing inferences is that the party seeking reversal chose
not to object, then the record does “not clearly show that the
trial court erred,” which precludes plain error review.
Id. at
169-70.
Here, we are faced with competing inferences. On
one hand, it is possible that the trial court misunderstood
the proposed restitution procedure that the state and defendant had agreed to, in which case it was error for the trial
court to enter the restitution order without first scheduling
a hearing for the state to present the restitution evidence.
On the other hand, it is possible that the trial court correctly understood that, if defendant objected within 60 days
of the state filing the restitution schedule, the court would
have 60 days from the date that the restitution schedule was filed to file any
objections. Defendant did not raise any objection or seek to clarify that provision
of the sentencing judgment.
Nonprecedential Memo Op: 335 Or App 532 (2024) 535
schedule a restitution hearing to determine the amount of
restitution—otherwise the court did not have to schedule a
hearing because defendant did not object to the restitution.
That latter inference is supported by defendant not having
objected or clarified when the court stated its understanding; by defendant’s approach to the pleas and sentencing,
in which he expressed deep remorse and a desire to take
responsibility for what he had done; and by the possibility
that the restitution award might have an effect that would
simplify the various civil suits that defendant faced.
Because we would have to choose between competing inferences to determine whether the trial court erred,
defendant’s claim of error is not plain.
Affirmed.
