and submitted June 21, 2016.
County Circuit Court 130833938, Jean Kerr Maurer, Judge.
J. Snyder Severe argued the cause for appellant.
her on the briefs was Ernest G. Lannet, Chief Defender,
Criminal Appellate Section, Offce of Public Defense Services.
J. Payne, Assistant Attorney General, argued the cause for
him on the brief were Ellen F. Rosenblum, Attorney General,
and Paul L. Smith, Deputy Solicitor General.
Ortega, Presiding Judge, and Lagesen, Judge, and Garrett,
being convicted of second-degree burglary, ORS 164.215,
first-degree theft, ORS 164.055, second-degree theft, ORS
164.045, and second-degree criminal mischief, ORS 164.354,
defendant appeals a supplemental judgment for restitution in
the amount of $32, 227.95, arguing that he was not convicted
of, and never admitted, 11 of the 42 crimes underlying that
award. The state does not contend on appeal that the trial
court's restitution award is correct, but instead argues
that defendant's arguments are unpreserved because he did
not identify those 11 specific claims below, and, if the
court committed plain error, it is not appropriate to correct
the error because defendant had the record necessary to
formulate a precise objection below.
The court committed plain error in awarding $32, 227.95 in
restitution because, as reflected by the record, some of the
claims underlying that award arose from crimes that defendant
never admitted and of which he was not convicted. Further, it
is appropriate to exercise discretion to correct the plain
error because the error here was grave [289 Or. 367] and
because this court has consistently exercised discretion to
correct plain errors in restitution awards.
Or. 368] GARRETT, J.
pleading no contest, defendant was convicted of second-degree
burglary, ORS 164.215; first-degree theft, ORS 164.055;
second-degree theft, ORS 164.045; and second-degree criminal
mischief, ORS 164.354. He appeals a supplemental judgment for
restitution in the amount of $32, 227.95, arguing that he was
not convicted of, and never admitted, some of the crimes
underlying that award. We conclude that the trial court
plainly erred in awarding that amount of restitution and
exercise our discretion to remand for resentencing.
review for legal error the trial court's legal
conclusions regarding a restitution award. State v.
Carson, 238 Or.App. 188, 191, 243 P.3d 73 (2010).
facts are undisputed. Defendant and his stepson, Schneider,
were arrested for a series of thefts throughout Portland. The
indictment contained 51 counts; Schneider was charged in all
of them, but defendant in only 30 of the counts, which
alleged conduct from December 2012 through February 2013.