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State v. Garlitz

Court of Appeals of Oregon

August 23, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
NICOLE ANNE GARLITZ, Defendant-Appellant.

          Argued and submitted September 19, 2016

         Washington County Circuit Court C132441CR D. Charles Bailey, Jr., Judge. (Judgment and Amended Judgment) Kirsten E. Thompson, Judge. (Supplemental Judgment)

          Laura A. Frikert, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Greg Rios, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Egan, Presiding Judge, and Lagesen, Judge, and Schuman, Senior Judge.

         Case Summary:

         For her financial abuse of an elderly man and her fraudulent use of bank cards that she obtained under his name, defendant pleaded guilty to one count of aggravated identity theft, ORS 165.803, and one count of first-degree criminal mistreatment, ORS 163.205. The trial court sentenced her to pay a compensatory fine in the amount of $156, 565.82 and to a term of incarceration and other monetary obligations. On appeal, defendant assigns error to the trial court's imposition of the compensatory fine. She argues that the trial court erred in imposing a compensatory fine for losses incurred outside the time period covered by her guilty plea and in imposing a fine that exceeds the statutory maximum fine for first-degree criminal mistreatment.

         Held: Under State v. Grismore, 283 Or.App. 71, 76, 388 P.3d 1144 (2016), the trial court was permitted to impose whatever penalty fines were authorized by ORS 161.625 for defendant's [287 Or. 373] two convictions and then, under ORS 137.101, direct that some or all of those monies be paid to the victims of defendant's offenses without determining the precise value of damages caused by defendant's conduct. Although the trial court erred when it imposed a total fine in excess of the statutory maximum for defendant's conviction of criminal mistreatment, because defendant did not raise the issue before the trial court, and because the trial court would almost certainly sentence defendant to the same fine on remand by reallocating all or part of it to defendant's other conviction of aggravated identity theft, the Court of Appeals declined to exercise its discretion to correct the error.

         Affirmed.

         [287 Or. 374] LAGESEN, J.

         For her financial abuse of an elderly man and her fraudulent use of bank cards that she obtained under his name, defendant pleaded guilty to one count of aggravated identity theft, ORS 165.803, and one count of first-degree criminal mistreatment, ORS 163.205. The trial court sentenced her to pay a compensatory fine in the amount of $156, 565.82 and to a term of incarceration and other monetary obligations. On appeal, defendant assigns error to the trial court's imposition of the compensatory fine. She argues that the trial court erred in imposing a compensatory fine for losses incurred outside the time period covered by her guilty plea, and in imposing a fine that exceeds the statutory maximum fine for first-degree criminal mistreatment. We review for legal error, State v. Neese, 229 Or.App. 182, 184, 210 P.3d 933 (2009), rev den, 347 Or. 718 (2010), and affirm.

         The relevant facts are largely procedural and not disputed on appeal. As the state explained at defendant's plea hearing, the factual basis for defendant's plea is as follows. In late 2011, defendant, along with codefendant Kelly Dresser, approached O, an elderly man with dementia, in a Fred Meyer parking lot after witnessing him looking for his car. Defendant and Dresser obtained O's phone number and became friendly with him. They eventually moved into his home and took over his care, including payment of his bills. They also began to use his money for their own purposes, filling out and cashing his checks-some of which O signed, and some of which defendant and Dresser forged. Defendant and Dresser also obtained and used bank cards under O's name, without his understanding or consent. In all, defendant and Dresser amassed $156, 565.82 in debt in O's name. He lost $110, 130.91 personally, and four different banks reported the remainder as losses that they had written off as resulting from fraud. Defendant and Dresser's appropriation of O's money and identification began around October 2011, and ended in October 2013 when they were arrested and each charged with one count of criminal mistreatment in the first degree, one count of aggravated theft in the first degree, and two counts of aggravated identity theft.

         [287 Or. 375] Thereafter, defendant entered a plea agreement under which she agreed to plead guilty to two of the charges: criminal mistreatment (Count 1), a Class C felony, and aggravated identity theft (Count 4), a Class B felony. The parties stipulated to concurrent sentences of six months' and 15 months' imprisonment for those charges, respectively. Defendant initially was sentenced to pay two $200 fines, one for each count, and the trial court indicated that those financial obligations would increase after a later hearing at which the court would ascertain the economic losses sustained by O and the banks affected by defendant's conduct, so that such amounts could be imposed as a compensatory fine under the mechanism provided by ORS 137.101(1).[1]In exchange for defendant's plea, the state agreed to dismiss the remaining counts and not charge defendant for additional thefts arising out of her relationship with O.

         After the subsequent hearing, the court issued a letter opinion in which it found that the conduct of defendant [287 Or. 376] and Dresser had caused losses to O and various banks in the amount of $156, 565.82, and entered a supplemental judgment stating that defendant was jointly and severally liable with Dresser for a compensatory fine in the amount of $156, 565.82. Neither the court's letter opinion nor the supplemental judgment identify on which of defendant's two convictions the trial court intended to impose the fine; however, the case register indicates that the fine was ...


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