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State v. Wagoner

Court of Appeals of Oregon

July 24, 2013

STATE OF OREGON, Plaintiff-Respondent,
v.
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.

WOLLHEIM, J.

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), [1] 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 ...

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