and Submitted September 19, 2016.
County Circuit Court C133034CR; Thomas W. Kohl, Judge.
M. Reese, 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
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.
Lagesen, Presiding Judge, and Egan, Chief Judge, and Schuman,
of judgment requiring defendant to pay compensatory fines and
attorney fees reversed; otherwise affirmed.
Summary: Defendant, convicted of multiple crimes, assigns
error to the trial court's imposition of three $50, 000
compensatory fines and $9, 290 in court-appointed attorney
fees. Among other contentions, defendant argues that the
trial court plainly erred when it imposed the compensatory
fines in addition to punitive fines on the same counts.
Additionally, defendant contends that the trial court plainly
erred by imposing $9, 290 in court-appointed attorney fees
because the court's determination that defendant is or
may be able to pay the costs was not supported by the record.
Held: The trial court plainly erred by imposing the
compensatory fines in addition to punitive fines on the same
counts. The trial court also plainly erred when it imposed
court-appointed attorney fees. The Court of Appeals exercised
its discretion to correct those errors.
Or.App. 469] EGAN, C. J.
appeals a judgment of conviction for two counts of
second-degree rape, ORS 163.365 (Counts 1 and 2), two counts
of second-degree sodomy, ORS 163.395 (Counts 3 and 4), two
counts of second-degree unlawful sexual penetration, ORS
163.408 (Counts 5 and 6), two counts of first-degree sexual
abuse, ORS 163.427 (Counts 7 and 8), one count of unlawful
delivery of methamphetamine to a minor, ORS 475.890(3) (Count
10), and four counts of compelling prostitution, ORS 167.017
(Counts 13, 16-18). Defendant assigns error to the trial
court's imposition of three $50, 000 compensatory fines
on Counts 16 throughl8. Defendant also advances as
unpreserved contention that the court erred by imposing $9,
290 in court-appointed attorney fees. We conclude that the
trial court erred by imposing both the compensatory fines and
the attorney fees, and we reverse those portions of the
fall of 2012, defendant met S, a 13-year-old girl who had
recently run away from home, outside of his Beaverton
apartment. He allowed her to live with him for several weeks.
During that time, defendant provided S with drugs, raped and
sexually abused her, and induced her to engage in
of the following year, the Department of Human Services
(DHS), S's legal guardian at the time, sent S to Mingus
Mountain, a facility in Arizona for girls who are at risk
behaviorally and emotionally and for whom other treatment had
not been effective. She stayed there for nearly a year.
During a counseling session a few months after she arrived
there, S first alerted authorities to defendant's crimes.
was eventually charged with and convicted of the crimes
described above. During trial, S's former DHS caseworker
testified that S's treatment at Mingus Mountain had been
covered by her Oregon Health Plan (OHP) insurance, which all
juveniles automatically receive while they are in the
temporary custody of DHS.
sentencing, in addition to imposing a term of 370 months'
imprisonment, the trial court also expressed [290 Or.App.
470] interest in imposing compensatory fines under ORS
137.101. In accordance with that statute, the court indicated
that the state must prove economic damages to the victim
before the court could impose a compensatory fine. The state
presented a letter to the court from a DHS worker that stated
that the Mingus Mountain treatment had cost roughly $168,
000. In the state's view, the letter provided the court
with evidence that was sufficient to prove economic damages
for a compensatory fine. Defendant objected to the
compensatory fine, arguing, in part, that S did not suffer
any economic damages.
court imposed a punitive fine of $200 on each of Counts 1
through 10, 13, and 16 through 18. It also imposed three $50,
000 compensatory fines, one for each of three covictions for
compelling prostitution, Counts 16 through 18, which required
defendant to "Pay a compensatory fine to victim:
[S's name], c/o DHS." Additionally, the trial court
stated that defendant may be able to pay the compensatory
fines imposed because defendant was "about 28 years old
now, I think. And I'm going to find that he appears to be
healthy. Able to maintain some type of employment [.]"
The court then immediately turned to a discussion about
court-appointed attorney fees. Without stating that it was
relying on the same facts to determine that defendant could
pay the attorney fees, or making any findings explicitly for
the purpose of imposing the fees, the trial court imposed $9,
290 in court-appointed attorney fees on defendant. Defendant
did not object. During the trial, ...