July 24, 2013
STATE OF OREGON, Plaintiff-Respondent,
CINDIE WAGONER, Defendant-Appellant.
Submitted on June 27, 2012.
Washington County Circuit Court C091915CR Suzanne Upton, Judge.
Peter Gartlan, Chief Defender, and Shawn E. Wiley, Chief Deputy Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Doug M. Petrina, Senior Assistant Attorney General, filed the brief for respondent.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
Defendant pleaded guilty to identity theft, ORS 165.800. Although the victim provided her restitution information in a timely fashion to the district attorney's office, the victim's advocate who received it failed to forward the information to the prosecutor. As a result, the prosecutor told the court that the victim had not provided restitution information, and the court awarded no restitution. After learning of the mistake, the victim filed a motion asserting her constitutional right to restitution. The trial court ruled in the victim's favor and imposed restitution on defendant. On appeal, defendant asserts that, because the state did not investigate and present to the court the nature and amount of restitution prior to the time of sentencing as required by ORS 137.106 (2011),  the court had no authority to impose restitution. The state responds that, under Article I, section 42, of the Oregon Constitution, the court had the authority to impose restitution. We agree with the state and therefore affirm.
Defendant was charged with two counts of identity theft, which occurred in July 2009. On October 15, 2009, the victim of defendant's identity theft provided her advocate at the Washington County District Attorney's office, Flores, with proof of her loss. Flores failed to provide the information to the deputy district attorney assigned to the case.
In December 2009, defendant pleaded guilty to one count of identity theft, and the other count was dismissed. The court held a sentencing hearing the same day. At that hearing, the prosecutor stated that the time had passed for the victim to request restitution. The court stated that there was no award of restitution. Nonetheless, a restitution hearing was set for March 11, which was later set over to March 25, and then cancelled after the court signed an order stating that the restitution amount would be zero. Judgment was entered on January 5, 2010.
On February 1, 2010, the district attorney's office terminated Flores's employment. When other employees cleaned out Flores's desk, they found the victim's proof-of-loss documents. On March 29, the victim filed a motion asserting that she had a constitutional right to receive prompt restitution under Article I, section 42(1)(d). The court held a hearing on the victim's motion and concluded that the victim was entitled to restitution. In a May 24, 2010, supplemental judgment, the court ordered restitution in the amount of $800. Defendant appeals from the supplemental judgment.
"We review sentencing decisions, including restitution orders, for errors of law." State v. Ferrara, 218 Or.App. 57, 67-68, 178 P.3d 250, rev den, 344 Or 539 (2008). ORS 137.106 provides, in pertinent part:
"(1) When a person is convicted of a crime, or a violation as described in ORS 153.008, that has resulted in economic damages, the district attorney shall investigate and present to the court, prior to the time of sentencing, evidence of the nature and amount of the damages. If the court finds from the evidence presented that a victim suffered economic damages, in addition to any other sanction it may impose, the court shall include one of the following in the judgment:
"(a) A requirement that the defendant pay the victim restitution in a specific amount that equals the full amount of the victim's economic damages as determined by the court.
"(b) A requirement that the defendant pay the victim restitution, and that the specific amount of restitution will be established by a supplemental judgment based upon a determination made by the court within 90 days of entry of the judgment. In the supplemental judgment, the court shall establish a specific amount of restitution that equals the full amount of the victim's economic damages as determined by the court. * * * "
(Emphasis added.) Under Article I, section 42(1)(d), a victim in a criminal prosecution has "[t]he right to receive prompt restitution from the convicted criminal who caused the victim's loss or injury[.]" Article I, section 42(3)(c), provides that "[t]he Legislative Assembly may provide by law for further effectuation of the provisions of this subsection * * *."
The issue here is whether the trial court had the authority, under Article I, section 42, to award the victim restitution more than 90 days after the entry of defendant's judgment. We recently addressed a very similar question in State v. Thompson, 257 Or.App. 336, __ P.3d __ (2013). In Thompson, the defendant pleaded guilty to one count of failing to perform the duties of a driver and a judgment was entered requiring him to pay restitution to the victim. Id. at __ (slip op at 1). Several months later, the victim filed a claim asserting that its rights under Article I, section 42, had been violated because the trial court failed to order the defendant to pay restitution in the full amount of the victim's economic damages. Id. The trial court then amended the judgment, requiring the defendant to pay additional restitution. Id.
On appeal, the defendant argued that "the trial court lacked authority to order that defendant pay additional restitution because the amended judgment was entered outside the 90-day limit of ORS 137.106 (2011)." Id. at _ (slip op at 8) (footnote omitted). We stated that "the text of Article I, section 42, when read in conjunction with State v. Barrett, 350 Or 390, 255 P.3d 472 (2011), provides that the trial court had the authority to impose the additional restitution at the time that it did, and that ORS 137.106 (2011) is not to the contrary." Thompson, 257 Or.App. at __ (slip op at 9). We summarized Barrett as follows:
"Barrett involved a defendant who pleaded guilty to a stalking charge. The victim had exercised her constitutional right to 'be present at (and informed in advance of) critical stages of the proceedings, ' but after learning that the defendant had pleaded guilty and been sentenced without her knowledge, the victim filed a claim--under ORS 147.515--alleging a violation of her rights. Id. at 396 (quotation marks and brackets omitted). The trial court concluded that the victim's rights had been violated, but further concluded that Oregon law did not provide a remedy for such a violation. Id. at 396-97.
"On appeal, the Supreme Court concluded that the trial court could resentence the defendant as a remedy for the violation of a victim's constitutional rights. Id. at 407. The court first noted that Article I, section 42(3)(a), states that every described crime victim shall have 'remedy by due course of law for violation of a right established in this section.' Id. at 403. That right is not unlimited, however, because the constitution provides that, while a remedy may, in certain circumstances, include invalidating 'a ruling of a court, ' it may not include invalidating a 'conviction or adjudication.' Id. at 400, 400 n 6. The Barrett court concluded that a defendant's criminal sentencing is 'a ruling of the court, ' as opposed to a 'conviction or adjudication.' Id. at 403. With that understanding, the court concluded that, '[i]f vacating defendant's sentence and ordering a resentencing hearing is a legally permissible remedy, it is a 'remedy by due course of law' and may invalidate the trial court's ruling and defendant's sentence.' Id. In other words, a trial court may resentence a defendant in order to remedy the violation of a victim's rights, unless some source of law prohibits that course of action."
Thompson, 257 Or.App. at __ (slip op at 9-10). Applying the reasoning from Barrett, we concluded that ORS 137.106 did not prevent the court from imposing the additional amount of restitution. Id. at __ (slip op at 10).
The analysis in Thompson controls here. As in Thompson, ORS 137.106 did not prevent the court from imposing restitution in order to provide the victim a remedy by due course of law, after it was discovered that her constitutional right to restitution was violated.