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State v. Moreno-Hernandez

Court of Appeals of Oregon

February 28, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
VICTOR C. MORENO-HERNANDEZ, Defendant-Appellant.

          Argued and Submitted September 19, 2016.

         Washington County Circuit Court C133034CR; Thomas W. Kohl, Judge.

          Mary 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 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 Lagesen, Presiding Judge, and Egan, Chief Judge, and Schuman, Senior Judge.

         Portion of judgment requiring defendant to pay compensatory fines and attorney fees reversed; otherwise affirmed.

         Case 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.

         [290 Or.App. 469] EGAN, C. J.

         Defendant 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 judgment.

         In 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 prostitution.

         In July 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.

         Defendant 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.

         At 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.

         The 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, ...


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