State v. Bogard

468                   April 2, 2025               No. 292

   This is a nonprecedential memorandum opinion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.
               PETER SHELBY BOGARD,
                  Defendant-Appellant.
              Jackson County Circuit Court
                  21CR43522; A181758

  Benjamin M. Bloom, Judge.
  Submitted February 25, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Peter G. Klym, Deputy Public Defender, Oregon
Public Defense Commission, 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 Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
  TOOKEY, P. J.
  Attorney fee assessment vacated; otherwise affirmed.
Nonprecedential Memo Op: 

 (2025)              469

         TOOKEY, P. J.
         On appeal of his convictions for fourth-degree
assault, ORS 163.160, and disorderly conduct, ORS 166.025,
defendant asserts that the sentencing court committed plain
error in imposing restitution to the victim’s insurance company and to the Criminal Injuries Compensation Account
(CICA), and in ordering defendant to pay $200 toward the
fees for his court-appointed counsel. We vacate the assessment of attorney fees and otherwise affirm.
        As to attorney fees, the state concedes plain error.
We agree that the sentencing court plainly erred in imposing attorney fees, and we exercise our discretion to correct
the error in views of the ends of justice in this case and the
interests of the parties.
         As to restitution, defendant did not dispute below
that restitution was appropriate based on his criminal conduct. Nor did he request a hearing or challenge the amount
requested by the state. He now contends, however, that the
state failed to present evidence of the economic damages
to the insurance company and to CICA. See ORS 137.106
(authorizing imposition of restitution “in a specific amount
that equals the full amount of the victim’s economic damages as determined by the court.”).
         We conclude that there was no plain error in imposing restitution. See State v. Coons, 

, 

 (2019), rev den, 

 (2020) (“[N]othing on
the face of ORS 137.106, or any other statute of which we
are aware, plainly indicates that the legislature intended to
foreclose a sentencing court from imposing an unobjected-to
amount of restitution.”). However, even assuming plain error,
considering the factors that bear on our exercise of discretion, we would decline to correct it. See State v. Vanornum,

, 

 (2013) (explaining that “discretion entails making a prudential call that takes into account
an array of considerations, such as the competing interests
of the parties, the nature of the case, the gravity of the error,
and the ends of justice in the particular case”).
        Attorney     fee   assessment     vacated;    otherwise
affirmed.