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State v. Moore

Court of Appeals of Oregon

February 14, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
DANIEL STEVEN MOORE, Defendant-Appellant.

          Submitted October 10, 2017

         Clackamas County Circuit Court CR1301855; Robert D. Herndon, 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 Timothy A. Sylwester, Assistant Attorney General, fled the brief for respondent.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant was convicted of three counts of second-degree rape and argues on appeal that the sentencing court plainly erred in imposing consecutive sentences and $1, 600 in attorney fees. Defendant's convictions arose out of three separate criminal episodes. Each conviction was subject to a 75-month mandatory minimum sentence. Defendant asked the court to impose concurrent sentences. The court instead imposed consecutive sentences, stating that it was required to do so because the convictions arose out of separate criminal episodes. The court also imposed $1, 600 in court-appointed attorney fees. Held: The sentencing court plainly erred when it imposed consecutive sentences based on a mistaken belief that it was required by law to do so. The court also plainly erred by imposing attorney fees without evidence of defendant's ability to pay. The Court of Appeals exercised its discretion to correct both of those errors.

          [290 Or. 307] AOYAGI, J.

         Defendant was convicted of three counts of second-degree rape. On appeal, he assigns error to the sentencing court's imposition of three consecutive 75-month prison sentences and $1, 600 in attorney fees. In his first and second assignments of error, defendant asserts that the sentencing court committed plain error when it imposed consecutive sentences, rather than concurrent sentences, based on a mistaken belief that consecutive sentences were required. In his third assignment of error, defendant asserts that the sentencing court committed plain error when it imposed attorney fees without evidence in the record that he is or may be able to pay them. We agree with defendant on both issues.

         The relevant facts are undisputed. Defendant was convicted of three counts of rape in the second degree, ORS 163.365. At sentencing, the parties agreed that, under ORS 137.700(2), defendant was subject to a mandatory minimum prison term of 75 months for each count. The state asked the court to impose consecutive sentences for a total of 225 months in prison. Defendant requested concurrent sentences for a total of 75 months in prison. The court ultimately imposed consecutive sentences:

"So for Count 1, for Rape in the Second Degree, you'll be sentenced to the Ballot Measure 11 sentence of 75 months. * * *
"For Count 2, that being a second and separate criminal episode, I'm required, as I see it, to impose a consecutive sentence because that was a separate occasion on which you had had an opportunity for thoughtful reflection on the criminality of the first sentence-or the first crime that you had committed and despite that fact, committed a further forcible Rape in the Second Degree here.
"And that will be also 75 months under Ballot Measure 11, under the same terms, and that sentence will be consecutive to Count 1.
"For Count 3, that being a separate criminal episode, separate and distinct from that found in Counts 1 and 2, I impose a further 75-month sentence ***. Again, that being a separate criminal episode, one in which you had the opportunity to-to think about the consequences of your [290 Or. 308] two ...

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