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State v. Brooks

Court of Appeals of Oregon

April 26, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
DALE EUGENE BROOKS, Defendant-Appellant.

          Submitted March 9, 2017

         Clackamas County Circuit Court CR1400824 Katherine E. Weber, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kali Montague, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Robert M. Wilsey, Assistant Attorney General, fled the brief for respondent.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

         Case Summary:

         Defendant appeals the trial court's judgment convicting him of three counts of first-degree sexual abuse, ORS 163.427. On each of the three counts, the trial court imposed $607 in unitary assessments, $25 in county assessments, and a $200 fine. On appeal, defendant asserts that the trial court plainly erred by imposing the unitary assessments, county assessments, and fines. Held: The trial court did not err by imposing the unitary assessments or the fines. However, the trial court did err by imposing the county assessments, because it did so outside of defendant's presence.

         Portions of the judgment requiring defendant to pay the $25 county assessments reversed; otherwise affirmed.

          DUNCAN, P. J.

         Defendant appeals the trial court's judgment convicting him of three counts of first-degree sexual abuse, ORS 163.427, a Class B felony. Defendant committed the crimes between 2006 and 2008, and the trial court convicted and sentenced defendant in 2015. On each of the three counts, the trial court imposed $607 in unitary assessments, [1] $25 in county assessments, [2] and a $200 fine. On appeal, defendant challenges the trial court's imposition of the unitary assessments, county assessments, and fines. For the reasons explained below, we reverse the portions of the judgment imposing the $25 county assessments, and we otherwise affirm.

         We begin with defendant's challenge to the $607 unitary assessments. Defendant did not object to the unitary assessments, but asserts that the trial court plainly erred in imposing them. See ORAP 5.45(1) (authorizing review of errors apparent on the record). Specifically, defendant asserts that the trial court lacked authority to impose the unitary assessments because the statute authorizing their imposition was repealed before he was sentenced. As defendant points out, former ORS 137.290 (2009) authorized the assessments, but it was repealed by Oregon Laws 2011, chapter 597, section 118, which took effect on January 1, 2012, before defendant was sentenced in 2015. Defendant notes that the law that repealed former ORS 137.290 (2009) also repealed other statutes concerning the financial obligations courts can impose on a defendant and that the law specifically provided that some of the repeals applied "only to offenses committed on or after January 1, 2012, " but did not include any such limitation on the repeal of former ORS 137.290 (2009). Therefore, defendant contends, the repeal of former ORS 137.290 (2009) applies to any person sentenced after January 1, 2012, even if the person is being sentenced for offenses committed before January 1, 2012. In support of his contention, defendant cites State v. Wills, 260 Or.App. 440, 441, 317 P.3d 407 (2013), in which we accepted the state's concession that the trial court erred in imposing unitary assessments on the defendant's convictions pursuant to former ORS 137.290(2)(b) (2009) because that statute "was no longer in effect when the sentence was imposed." (Emphasis added.)

         The state agrees with defendant, stating that, because former ORS 137.290 (2009) "was repealed before defendant was sentenced in this case, *** the trial court plainly erred by imposing" the unitary assessments. (Emphasis added.) Like defendant, the state relies on Wills.

         Because of a change in the law after the 2011 repeal of former ORS 137.290 (2009), we disagree with the parties' conclusions that the trial court erred by imposing the unitary assessments in this case. In 2012, the legislature enacted a law providing that the 2011 repeal of former ORS 137.290 (2009) "applies only to offenses committed on or after January 1, 2012." Oregon Laws 2012, ch 89, § 1, compiled as a note after ORS 137.268 (2013). Specifically, that law states, in part:

"(2) The repeal of ORS 137.290 by section 118, chapter 597, Oregon Laws 2011, applies only to offenses committed on or after January 1, 2012. Except as provided in this section, any offense committed before January 1, 2012 shall continue to be governed by ORS ...

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