State v. Marvin

124                   July 23, 2025                No. 658

   This is a nonprecedential memorandum opinion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.
            WILLIAM BUCKLEY MARVIN,
                 Defendant-Appellant.
            Clackamas County Circuit Court
                 22CR53153; A183149

  Susie L. Norby, Judge.
  Submitted June 24, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sara F. Werboff, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
   Dan Rayfield, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
  KAMINS, J.
   Portion of judgment requiring defendant to pay per diem
fees reversed; otherwise affirmed.
Nonprecedential Memo Op: 

 (2025)           125

        KAMINS, J.
         Defendant appeals from a judgment of conviction
following a guilty plea, raising two assignments of error
as to his sentence. First, defendant contends that the trial
court erred in revoking transitional leave without substantial and compelling reasons to do so. Second, he argues, and
the state concedes, that the trial court erred by imposing
per diem fees in the judgment without having announced
the fees in open court. For the reasons explained below, we
reject defendant’s first assignment as it is unpreserved but
agree that the imposition of per diem fees was error. We
accordingly reverse that portion of the judgment but otherwise affirm.
        We review a sentencing court’s decision to deny a
defendant sentencing reduction programs for legal error,
and its factual findings for any evidence in the record to
support them. State v. Messer, 

, 

 (2022).
         In 2022, defendant was charged with various offenses.
He subsequently violated stalking protective orders, failed to
appear in court, and went “on the lam,” fleeing from Oregon
to South Carolina (where he was ultimately apprehended).
During sentencing, defendant requested programming in
the form of alternative incarceration programs (AIP) and
transitional leave. Defendant argued that the underlying
causes of his crimes were drug and alcohol abuse, as well as
early onset dementia, and if granted programming, he could
receive treatment.
          The trial court denied AIP and revoked transitional
leave. It stated, “The most pivotal part of recovery is taking
responsibility and making amends. And I can only conclude
that you hadn’t yet reached those steps before you were
caught. … So while I reviewed the documents and they
were positive and while I heard everything your attorney
said, I am not going along with his argument.” Additionally,
the trial court waived per diem fees; however, the judgment
imposed them.
        In his first assignment of error, defendant argues
that the trial court erred in denying transitional leave
126                                                         State v. Marvin

because there were no “substantial and compelling reasons”
to do so, ORS 137.750,1 and that the trial court conflated his
argument for affirmatively granting AIP with his separate
request to maintain transitional leave. However, that argument is unpreserved. ORAP 5.45(1) (“No matter claimed as
error will be considered on appeal unless the claim of error
was preserved in the lower court ….”). Defendant at no point
suggested to the trial court that it conflated the analysis for
AIP and transitional leave, nor did he object to any perceived
lack of substantial and compelling reasons for denying transitional leave. Because defendant failed to raise his argument
to the trial court and does not seek plain error review, we
do not reach it. See State v. Ardizzone, 

,

, rev den, 

 (2015) (explaining that an
appellate court will not ordinarily proceed to the question of
plain error unless an appellant has explicitly asked it to do
so); see also State v. Pierce, 

, 

, rev den, 

 (2015) (“[W]e generally do not review
unpreserved claims of error challenging the adequacy of the
findings required by ORS 137.750.”) (citing State v. Hammond,

, 

 (2008); State v. Soto-Nunez, 

, 

 (2007)).
         In his second assignment of error, defendant contends
that the trial court erred in entering a judgment imposing
payment of per diem fees without announcing that provision
in open court. The state concedes that error—a concession
that is well taken. See State v. Schay-Vivero, 

, 

 (2024) (per diem fees must be announced in
open court). We accept the state’s concession and reverse that
portion of the sentence imposing per diem fees.
        Portion of judgment requiring defendant to pay per
diem fees reversed; otherwise affirmed.
   1
       ORS 137.750(1) provides:
        “When a court sentences a defendant to a term of incarceration upon conviction of a crime, the court shall order on the record in open court as part of
   the sentence imposed that the defendant may be considered by the executing
   or releasing authority for any form of temporary leave from custody, reduction in sentence, work release or program of conditional or supervised release
   authorized by law for which the defendant is otherwise eligible at the time
   of sentencing, unless the court finds on the record in open court substantial
   and compelling reasons to order that the defendant not be considered for such
   leave, release or program.”