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State v. Gardner

Court of Appeals of Oregon

August 2, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
KEVIN D. GARDNER, aka Kevin Dewayne Gardner, Defendant-Appellant.

          Submitted June 2, 2017

         Jackson County Circuit Court 15CN01221; Ronald D. Grensky, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Rond Chananudech, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant. Kevin D. Gardner fled the supplemental brief pro se.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Lauren P. Robertson, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.

         [287 Or.App. 226] PER CURIAM.

         Defendant appeals a judgment of contempt that ordered him to pay delinquent child support and placed him on probation for a determinate period of one year. He argues that the trial court failed to follow the procedure required by ORS 33.055 (2015) to impose remedial sanctions for contempt, and that the court erred by imposing punitive contempt sanctions in a remedial contempt proceeding.

In relevant part, ORS 33.055 (2015) provides:
"(1) Except as otherwise provided in ORS 161.685, [1]proceedings to impose remedial sanctions for contempt shall be conducted as provided in this section.
******
"(3) A motion to initiate a proceeding under this section shall be filed in the proceeding to which the contempt is related, if there is a related proceeding."

(Emphasis added.) Here, defendant's child-support obligations were imposed in Case No. 07-0806-D3, but the state initiated the contempt proceeding under a new case number. Defendant objected to that process, but the court noted that "statewide they're not brought in the same proceeding, it's a brand new filing now."[2]

         The state concedes that its motion "was not filed in compliance" with ORS 33.055(3) (2015) because it was not [287 Or.App. 227] filed in "the proceeding to which the contempt is related." We agree and accept the state's concession.

         Defendant also contends that the court plainly erred by imposing a punitive contempt sanction (a determinate term of probation) in a remedial contempt proceeding. See State v. Austin.276 Or.App. 648, 650-51, 369 P.3d 100 (2016) (noting that a determinative term of probation is punitive, not remedial); cf. ORS 33.105(1)(d) (authorizing probation as a remedial sanction for contempt). The state concedes that the court plainly erred by imposing a punitive sanction because the court lacked the authority to do so. See Altenhofenand Vanden-Busch, 271 Or.App. 57, 62, 349 P.3d 655, rev den,358 Or. 449 (2015) (trial court committed plain error by imposing punitive sanction in a remedial contempt proceeding); Miller and Miller,204 Or.App. 82, 84-85, 129 P.3d 211 (2006) (same). For reasons similar to those expressed in Altenhofen, we conclude that it is appropriate to exercise our discretion to ...


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