72 June 4, 2025 No. 490
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
DANIEL SHANNON SEVERE,
Defendant-Appellant.
Lane County Circuit Court
23CR04294; A182007
Bradley A. Cascagnette, Judge.
Submitted January 21, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and James Brewer, Deputy Public Defender, Oregon
Public Defense Commission, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, Lagesen, Chief Judge,
and Hellman, Judge.*
HELLMAN, J.
Supplemental judgment reversed and remanded; otherwise affirmed.
______________
* Lagesen, Chief Judge vice Mooney, Senior Judge.
Cite as 341 Or App 72 (2025) 73
74 State v. Severe
HELLMAN, J.
Defendant appeals a supplemental judgment that
imposed restitution of $11,021.86 in connection with his conviction for recklessly endangering another person. His sole
challenge on appeal is to the court’s inclusion of the following provision at the bottom of that judgment, below the signature line:
“Notice: Pursuant to ORS 1.202, a fee of not less than $50
and no more than $200, shall be added to any judgment in
which the court gives a party a period of time to pay the
financial obligation imposed. An additional collection fee
will be imposed on all cases referred to a collection agency.
Both fees will be imposed without further notice from the
court.”
For the reasons explained below, we conclude that
the provision that defendant challenges misstates the fee
that shall be imposed for a payment plan under ORS 1.202
and that inclusion of that erroneous provision on the face
of the judgment has a present effect on defendant’s rights—
specifically, his right to request a payment plan as a debtor.
Although we disagree with defendant’s argument that he
needed to be present when that provision was added to the
judgment, the substantive error in imposing it is one that
defendant can raise for the first time on appeal. We therefore
reverse and remand for entry of a supplemental judgment
that does not misstate the fees for setting up a payment plan.
The provision that defendant challenges in this
appeal concerns collection of fees on judgments under ORS
1.202. That statute provides, in relevant part:
“(1) All circuit courts and appellate courts of this
state, and all commissions, departments and divisions in
the judicial branch of state government, shall add a fee of
not more than $200 to any judgment that includes a monetary obligation that the court or judicial branch is charged
with collecting. The fee shall cover the cost of establishing
and administering an account for the debtor and shall be
added without further notice to the debtor or further order
of the court. The fee shall be added only if the court gives
the defendant a period of time in which to pay the obligation after the financial obligation is imposed. Fees under
this subsection shall be deposited in the General Fund.
Cite as 341 Or App 72 (2025) 75
“…
“(4) The Chief Justice of the Supreme Court may
authorize or direct circuit courts and appellate courts of
this state, and all commissions, departments and divisions
in the judicial branch of state government, to waive or
suspend the fees required to be added to judgments under
this section. Except to the extent authorized by the Chief
Justice, a court may not waive or suspend the fees required
to be added to judgments under this section.”
The Chief Justice has, by order, directed the imposition and waiver of fees. Chief Justice Order (CJO) 21-043
provides, in relevant part:
“1. Each state court and judicial department entity
must impose a $25 fee on all judgments subject to ORS
1.202(1) when a court imposes a payment plan or establishes a payment schedule at the debtor’s request that will
continue for more than 12 full months before the debtor’s
outstanding balance will be paid in full.
“2. Pursuant to ORS 1.202[(4)1], I hereby authorize all
state courts to waive or suspend the fee required by this
order if the court determines at any time that waiver or
suspension of the fee is appropriate based on the debtor’s
financial circumstances.”
As the state correctly concedes, the provision that
was added to the supplemental judgment in this case is
inconsistent with CJO 21-043 and provides inaccurate notice
of what fee “shall be added” if the court gives defendant a
period of time to pay the restitution judgment. Whereas the
judgment states that “a fee of not less than $50 and no more
than $200” shall be added in that event, the CJO sets the
fee at $25 and authorizes the court to waive it based on the
debtor’s financial circumstances.
Despite the inconsistency, the state contends that
defendant’s challenge is not justiciable because it is not
ripe for review and that the appropriate time to resolve the
issue “is when the trial court actually imposes the fees.”
The question, then, is whether the inaccuracy on the face
1
The CJO refers to ORS 1.202(3), which was the authorizing provision at the
time; it has since been renumbered as subsection (4) as a result of subsequent
amendments to ORS 1.202.
76 State v. Severe
of the judgment is one that we can and should correct in
this appeal. We conclude that it is, because the controversy
in this case “involves present facts as opposed to hypothetical future events.” Dept. of Human Services v. E. J., 316 Or
App 537, 541,
504 P3d 1262 (2021), rev dismissed,
370 Or
740 (2023) (internal quotation marks and citations omitted).
Here, the judgment describes the immediate consequence
of defendant requesting a payment plan for his restitution
award—that a fee no lower than $50 and as high as $200
“shall be added.” The provision, which says that it is providing “notice” to defendant of that consequence, affects
defendant’s present ability to seek an avenue of repayment
that the law otherwise makes available—a repayment plan
with a $25 setup fee. We therefore reject the state’s ripeness
argument.2
As for the merits of defendant’s challenge, we agree
that the judgment is erroneous and should be reversed,
but only for one of the two reasons that defendant posits:
that the provision misstates the law. As noted at the outset, defendant also argues that the court erred by inserting
the provision in the judgment without first announcing it
in open court. We disagree that the failure to announce the
provision in open court—had it been an accurate notice—
would have itself been reversible error. The provision that
2
In State v. Ciraulo, 301 Or App 849, 850,
459 P3d 960, aff’d,
367 Or 350,
478
P3d 502 (2020), we rejected an argument that the court violated ORS 1.202(1)
and ORS 161.675(1) (concerning conditions of payment of monetary obligations
by defendants) by including in the judgment a provision stating that “[t]he
court may increase the total amount owed by adding collection fees and other
assessments,” that “[t]hese fees and assessments may be added without further
notice to the defendant and without further court order,” and that “[p]ayment of
the fines, fees, assessments, and/or attorney’s fees noted in this and any subsequent Money Award shall be scheduled by the clerk of the court pursuant to ORS
161.675.” The defendant, however, made an additional argument: that, after the
term was imposed, the clerk subsequently violated the law by adding collection
fees post-judgment.
Id. We declined to reach that latter contention, explaining
that “to the extent that defendant has evidence that the clerk is violating the
law post-judgment, an appropriate course may be for defendant to challenge the
clerk’s actions in the trial court, through a writ of mandamus, or otherwise.” Id. at
850-51.
The state suggests that the same is true here: If the trial court or court clerk
were to impose a fee that is inconsistent with CJO 21-043, the appropriate course
is for defendant to challenge that action when it happens. This case, however, is
different from Ciraulo in that the harm flows from a mistake in the judgment
itself, and not merely from a later violation of law by the clerk.
Cite as 341 Or App 72 (2025) 77
the court inserted concerned an administrative notification
regarding the effect of ORS 1.202; even if we were to agree
with defendant that such a notice is somehow part of his
“sentence,”3 the court permissibly could have added an accurate statement regarding the effect of ORS 1.202 to the judgment without first announcing it in open court. See State v.
DeCamp,
158 Or App 238, 242,
973 P2d 922 (1999) (explaining that the right to be present at sentencing “extends to
sentence modification if the modification is ‘substantive’ as
opposed to ‘administrative’ ”).
The problem is not that the notice was announced
outside defendant’s presence; the problem is that what the
court added to the judgment was wrong. Because that incorrect provision appeared for the first time in the judgment,
this is defendant’s first opportunity to challenge it. See State
v. Baccaro, 300 Or App 131, 134 n 2,
452 P3d 1022 (2019)
(“Because the error of which defendant complains appeared
for the first time in the written judgment, however, defendant is excused from the preservation requirement.”). And,
again, the state does not dispute that the provision is inconsistent with the applicable CJO. Its only defense of the provision on the merits is similar to its ripeness argument: that,
even though it misstates the fee, it does not actually impose
any incorrect fees. However, for the reasons expressed earlier, we disagree with that framing of the error. Defendant
is entitled to a judgment that, on its face, accurately states
the law and the consequences of a payment plan as a debtor.
We therefore reverse and remand for entry of a supplemental judgment that does not misstate the law in that regard.
Supplemental judgment reversed and remanded;
otherwise affirmed.
3
As the state points out, ORS 1.202 applies to civil and criminal judgments
alike, and the fee is deposited in the General Fund.
