State v. Sullivan

No. 163               February 26, 2025                      271

   This is a nonprecedential memorandum opinion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.
                 EMILY ANNE SULLIVAN,
                    Defendant-Appellant.
                 Linn County Circuit Court
                   22CR54459; A180969

   Michael B. Wynhausen, Judge.
   Submitted October 23, 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 Jonathan N. Schildt, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Powers, Judge, and Pagán,
Judge.
   SHORR, P. J.
   Affirmed.
272                                          State v. Sullivan

        SHORR, P. J.
          Defendant appeals a judgment of conviction for
driving while suspended or revoked and failure to appear on
a criminal citation. She raises two assignments of error. The
first is an unpreserved claim that the trial court erred by
imposing a $100 fine without awareness that it could waive
the fine and without sua sponte inquiring as to defendant’s
ability to pay. The second concerns a special condition of
probation that was not announced in open court. The state
responds that the first assignment is not plain error, and
it concedes that the trial court erred by imposing the probation condition not announced in open court, but it also
points out that defendant’s probation term was set to expire
in September 2024, so the second claim of error would now
be moot. We affirm.
          We agree with the state that it is not plain that the
trial court erred in imposing the $100 fine. Defendant identifies no authority that required the trial court to sua sponte
inquire about defendant’s ability to pay the fine, and we are
not persuaded that the trial court misunderstood its ability
to waive the fine. Defendant requested that the trial court
waive the fine, as permitted by ORS 137.286(3). And had
defendant presented evidence concerning the financial burden of the fine on defendant, that statutory provision would
have required the court to consider it. But it is not plain
that, when a defendant asks the court to waive a fine but
presents no evidence as to the defendant’s ability to pay, a
trial court is required to sua sponte create an evidentiary
record as to the defendant’s financial circumstances.
         We also agree with the state that it appears the
second assignment of error is now moot. The state filed its
answering brief in June 2024. In August 2024, the case was
scheduled to be submitted in October 2024. We see no indication in the trial court file that defendant’s probation was
extended or otherwise did not expire in September 2024 as
scheduled, and we have not received any response to the
state’s mootness argument from defendant. Accordingly, we
reject both assignments of error and affirm the judgment.
        Affirmed.