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State v. McDonald

Court of Appeals of Oregon

May 9, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
CHRISTOPHER A. McDONALD, Defendant-Appellant.

          Submitted December 21, 2016

          Jackson County Circuit Court 14CR01997, Kelly W. Ravassipour, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Anne Fujita Munsey, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jeff J. Payne, Assistant Attorney General, fled the brief for respondent.

          Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

         Case Summary: Defendant appeals a supplemental judgment imposing restitution, challenging the portions of that judgment that awarded restitution to KDRV Broadcasting (KDRV) and its insurance company, Allianz Global Corporate & Specialty (Allianz). Defendant, who pleaded guilty to one count of frst-degree aggravated theft in exchange for the dismissal of four counts of second-degree burglary, argues that he was not convicted of, and did not admit to, the conduct that caused damages to KDRV and Allianz. Held: To the extent that defendant admitted to conduct underlying the dismissed burglary charges, that admission did not unequivocally include the activities for which the court awarded restitution to KDRV and Allianz. In addition, there is nothing in the indictment, the factual basis for defendant's guilty plea, or the plea agreement that indicates that, by pleading guilty to first-degree aggravated theft, defendant's conviction included the theft of property of KDRV.

          [291 Or.App. 630] Portions of supplemental judgment awarding restitution to KDRV Broadcasting and Allianz Global Corporate & Specialty reversed; otherwise affirmed.

          [291 Or.App. 631] ORTEGA, P. J.

         Defendant pleaded guilty to one count of first-degree aggravated theft and agreed to pay restitution related to all of the counts alleged in the indictment, which included four second-degree burglary counts that the state agreed to dismiss as part of the plea negotiations. After a restitution hearing, the trial court entered a supplemental judgment that imposed restitution in the amount of $206, 393.61. On appeal, defendant challenges portions of the judgment, arguing that the court erred by awarding restitution of $5, 000 to KDRV Broadcasting and $8, 358.18 to its insurance company, Allianz Global Corporate & Specialty (Allianz), because defendant was not convicted of, and did not admit to, the conduct that caused damages to those entities.[1] We agree and reverse the portions of the supplemental judgment that awarded restitution to KDRV and Allianz.

         The relevant facts are mostly procedural. A grand jury indicted defendant of four counts of second-degree burglary (Counts 1-4) and one count of first-degree aggravated theft (Count 5). Each of the burglary counts alleged that defendant, "unlawfully and knowingly enter[ed] or remain[ed] in a *** building located on BLM land, BLM Road 33-5-26, with the intent to commit the crime of theft therein." Count 1 specifically identified a burglary occurring "on or about June 14, 2013, " in a Federal Aviation Administration building. Count 2 alleged a burglary "on or about June 21, 2013, " in an Oregon Department of Transportation building. Count 3 alleged a burglary "on or about June 21, 2013, " but did not identify a specific building; however, the parties agreed that it related to the "Pauletto Building."[2] Count 4 alleged a burglary "on or about June 21, 2013, " in a building owned by PacifiCorp. Finally, the theft count alleged that defendant "on or between June 14 to June 21, 2013, * * * did unlawfully and knowingly commit theft of property, of the total value of $10, 000 or more, the property of another."

         Defendant entered into a plea agreement with the state whereby he would plead guilty to first-degree [291 Or.App. 632] aggravated theft "as alleged" and pay "restitution." In exchange, the state would dismiss the burglary counts and recommend a downward dispositional departure sentence to probation. At the subsequent hearing on the plea agreement, the state explained the factual basis for defendant's guilty plea:

"This happened on BLM property. This codefendant and the other codefendants went-there are about five different buildings on this out site-of this out site, and they went in and took-pushed down power poles and took the copper off that and entered the other building and took copper out of the buildings."

         The court accepted defendant's guilty plea and ordered restitution in an ...


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