September 25, 2013
S.K.C., Petitioner below,
RODRIGUEZ MCAUTHOR PITTS, Respondent below. STATE OF OREGON, Plaintiff-Respondent,
RODRIGUEZ MCAUTHOR PITTS, Defendant-Appellant.
Submitted on August 20, 2013.
Washington County Circuit Court
No. C111200RO Gayle Ann Nachtigal, Judge.
Peter Gartlan, Chief Defender, and Elizabeth G. Daily, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Haselton, Chief Judge, and Hadlock, Judge.
Defendant was found in contempt of court for willfully violating a Family Abuse Prevention Act (FAPA) restraining order on two occasions. The court sentenced defendant to probation and ordered defendant to pay attorney fees, a unitary assessment, and an offense surcharge. On appeal from the contempt judgment, defendant raises three assignments of error. We reject his first assignment of error without discussion and write to address his contention, in his second and third assignments, that the trial court plainly erred in imposing a unitary assessment and surcharge. See ORAP 5.45(1); Ailes v. Portland Meadows, Inc., 312 Or 376, 382, 823 P.2d 956 (1991) (court has discretion to review unpreserved error of law apparent on the face of the record).
The state concedes that the "unitary assessment and surcharge imposed by the trial court exceeded the trial court's authority and constituted plain error." We agree and accept the state's concession. See State v. Quade, 252 Or.App. 577, 287 P.3d 1278 (2012) (court plainly erred in imposing unitary assessment on judgment of contempt); see also Or Laws 2009, ch 659, § 2(1) (instructing courts to impose offense surcharge in "all cases of conviction for the commission of a crime or violation"); State v. Litscher, 207 Or.App. 565, 569, 142 P.3d 549 (2006) ("violation of a FAPA restraining order is not a 'violation' within the meaning of ORS 153.008(1), " nor is it a crime); Bachman v. Bachman, 171 Or.App. 665, 672, 16 P.3d 1185 (2000), rev den, 332 Or 305 (2001) ("[A] contempt proceeding is neither civil nor criminal. Instead, it is a unique and inherent power of a court to ensure compliance with its orders."). Furthermore, in light of the interests of the parties and the ends of justice in this case, we conclude that it is appropriate to exercise our discretion to correct the error in this case. See Ailes, 312 Or at 382 n 6; see also Quade, 252 Or.App. at 578 (exercising discretion to correct plain error in imposing unitary assessment based on "the interests of the parties and the ends of justice"). Accordingly, the case must be remanded for entry of a contempt judgment that does not include the unitary assessment and surcharge.
Reversed and remanded for entry of a judgment omitting unitary assessment and surcharge; otherwise affirmed.