Argued and submitted on September 27, 2013.
Polk County Circuit Court 11P3014 William M. Horner, Judge.
Elizabeth G. Dailey, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jennifer S. Lloyd, Attorney-In-Charge, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Mary H. Williams, Deputy Attorney General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
Defendant appeals an amended judgment of conviction for theft in the first degree, ORS 164.055, contending that the trial court lacked authority to impose the amount of restitution that it did. Defendant contends that, because her plea petition only specified criminal conduct that occurred over a 16-day period, the trial court could not lawfully impose restitution for criminal conduct spanning a 65-day period. We agree with defendant that the trial court's restitution order was plain error, and we conclude that it is appropriate to exercise our discretion to correct the error and remand for resentencing.
The facts are not disputed. Defendant worked as a cashier at Thrifty Market for 85 days beginning in April 2010 and ending in August 2010. Her employer became suspicious that defendant was stealing money from the register; a review of the store's video surveillance system showed that defendant had stolen $1300 over a two-day period in July. She was also observed taking $270 on August 5. Defendant was charged with first-degree theft, ORS 164.055. The information read, in pertinent part, "The defendant, on or about July 21, 2010, in Polk County, Oregon, did unlawfully and knowingly commit theft of money, in an amount greater than $1, 000, the property of Thrifty Mart [sic] * * *." Defendant eventually pleaded guilty to that charge, pursuant to a plea petition in which she acknowledged that, "[o]n or between July 21, 2010 to August 5, 2010 in Polk County Oregon, I unlawfully and knowingly committed theft of money, in the amount of more than $1, 000, the property of Thrift [sic] Market."
The trial court accepted defendant's guilty plea and subsequently held a restitution hearing after allowing the state time to investigate the victim's damages. The state requested $43, 070 in restitution based on the confirmed theft amounts and the state's assertion that defendant was stealing approximately $500 a day over the entire 85-day course of her employment. The state based that assertion on the representations of Thrifty Market's owners about the shortfall in the store's expected receipts during that time. Defense counsel contended that the stolen amount was far less than that. Specifically, defense counsel stated, "She is acknowledging that there may have been as much as [$]200 on 10 or 12 different occasions." Defense counsel asked the trial court to find that the actual loss to the victim was $5, 000 or less.
In a letter opinion, the trial court imposed $33, 995 in restitution. As support for that figure, it cited the testimony of one of the people who helped defendant take the money from the store, who explained that she received $200 to $300 in cash each time she picked up money from defendant. The trial court then explained that, based on its previous experience with similar cases, the "embezzler" tends to underestimate the amount of money that he or she took. The court then averaged the amounts that defendant took on the occasions that she had been observed stealing, reaching a $523 figure. It then gave defendant "the benefit of the doubt" that she was not stealing during the first 20 days of her employment. The court multiplied the remaining 65 days of employment by $523 to arrive at $33, 995 in restitution.
Relying primarily on State v. Howett, 184 Or.App. 352, 56 P.3d 459 (2002), defendant contends that the trial court lacked authority under the relevant restitution statutes, ORS 137.103 and ORS 137.106, to impose restitution for any criminal conduct committed outside of the 16 days during which defendant admitted that the conduct was ongoing. In Howett, the defendant was charged with theft for conduct that occurred "on or between October 03, 2000, and October 07, 2000." Id. at 354. The defendant pleaded guilty pursuant to a plea petition in which she acknowledged that she stole $843 "[o]n or between 10/3/00 & 10/7/00." Id. The victim, the defendant's employer, determined that its loss from the defendant's theft from August 24 to October 5 was $6, 800. The trial court imposed $3, 250 in restitution.
On appeal, we began by interpreting the then-extant version of ORS 137.106, which authorized a trial court to order restitution when a person had been convicted of a crime that resulted in "pecuniary" damages. We noted that ORS 137.106 permitted restitution "as long as the damages were caused in a 'but for' sense by the criminal activities for which defendant was convicted or other criminal conduct admitted." Howett, 184 Or.App. at 356 (quoting State v. Stephens, 183 Or.App. 392, 395, 52 P.3d 1086 (2002). In Stephens, we stated that the three prerequisites to an order of restitution in a criminal case are (1) criminal activities, (2) pecuniary damages, and (3) a causal relationship between the two. 183 Or.App. at 395; see ORS 137.103(1) (defining "[c]riminal activities" as "any offense with respect to which the defendant is convicted or any other criminal conduct admitted by the defendant").
With the foregoing in mind, we held that the trial court erred. Specifically, we explained:
"Defendant was specifically charged with, and pleaded guilty to, theft in the first degree on or between October 3 and October 7, 2000. Defendant was not charged with or convicted of theft occurring during the earlier period of time, and defendant did not admit to any other criminal conduct. Under the facts of this case, the court lacked authority to impose restitution in excess of the undisputed $843 that was taken over the five-day period alleged in the indictment, because the earlier damages did not arise from the criminal activities to which defendant pleaded guilty. State v. Seggerman, 167 Or.App. 140, 145, 3 P.3d 168 (2000) ('Defendant cannot be ...