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State v. Tison

Court of Appeals of Oregon

June 13, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
JENNA RENEE TISON, Defendant-Appellant.

          Submitted March 23, 2018

          Coos County Circuit Court 16CR13682, 16CR23518 Richard L. Barron, Judge.

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

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, fled the brief for respondent.

          Before Tookey, Presiding Judge, and Shorr, Judge, and Powers, Judge.

         Portion of each judgment of conviction requiring defendant to pay a $1, 755 fine vacated; remanded for resentencing; otherwise affirmed.

         Case Summary: Defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII), ORS 813.010, and a judgment of conviction for reckless driving and DUII. Defendant assigns error to the trial court's imposition of a $1, 755 fine for each DUII conviction, arguing that those fines are impermissible because they exceed the $1, 500 fine for each DUII conviction that the trial court pronounced at sentencing. Defendant acknowledges that the $255 difference between the fines imposed at sentencing and the monetary penalty reflected in the judgments may reflect the trial court's imposition of the $255 fee that it was required to impose pursuant to ORS 813.020(1) and ORS 813.030 absent a finding that defendant was indigent. The trial court did not address that fee at sentencing. Held: The trial court erred by imposing fines in the judgments that exceeded those pronounced at sentencing. Because defendant appeals pursuant to former ORS 138.040, repealed by Or Laws 2017, ch 529, § 26, and because ORS 813.020(1) and ORS 813.030 reflect a clear legislative goal that trial courts [292 Or. 370] impose a $255 fee per DUII conviction if a defendant is not indigent, the Court of Appeals remanded the case for resentencing.

         Portion of each judgment of conviction requiring defendant to pay a $1, 755 fine vacated; remanded for resentencing; otherwise affirmed.

         [292 Or. 371] TOOKEY, P. J.

         In this consolidated appeal, defendant appeals a judgment of conviction for driving under the influence of intoxicants (DUII) and an amended judgment of conviction, entered in a separate case, for reckless driving and DUII. ORS 811.140; ORS 813.010. Defendant's DUII and reckless driving convictions are Class A misdemeanors. ORS 811.140(3); ORS 813.010(4). As reflected in the judgments, among other terms, the trial court sentenced defendant to pay a $1, 755 "fine" for each DUII conviction. Defendant challenges those fines, arguing that they are impermissible because they exceed the $1, 500 fine for each DUII conviction that the trial court pronounced at her sentencing hearing. The state concedes, and we agree, that the trial court erred by imposing fines in the judgments in excess of those pronounced at the sentencing hearing. Thus, the only issue to resolve on this appeal is the proper scope of remand. Defendant urges us to "reverse and remand for entry of corrected judgments that impose a $1, 500 fine for each of the DUII charges." The state argues that we should reverse and "remand the case for further proceedings." For the reasons that follow, we vacate that portion of each judgment of conviction that requires defendant to pay a $1, 755 fine for each of her DUII convictions, remand for resentencing, and otherwise affirm.[1]

         The relevant facts are not in dispute. After a jury found defendant guilty of one count of reckless driving and two counts of DUII, the trial court held a sentencing hearing. During that hearing, after inquiring as to whether defendant was employed and had a source of income, the trial court told defendant that it would impose a $1, 500 fine for each DUII conviction.[2] See ORS 813.010(6) (setting out fines for DUII convictions). The trial court also informed defendant that it would not require her to pay court-appointed attorney fees. The trial court did not, however, address the $255 fee that it was required to impose under ORS 813.020(1) and [292 Or. 372] ORS 813.030 absent a finding that defendant was indigent. See ORS 813.020(1) (providing that, when a person is convicted of DUII, the "court shall require the person" to pay "to the court the fee described under ORS 813.030"); ORS 813.030 ("The fee required by ORS *** 813.020(1) shall be in the amount of $255, except that the court may waive all or part of the fee in cases involving indigent defendants."). The trial court subsequently entered judgments imposing a fine of $1, 755 for each DUII conviction. Defendant acknowledges that the difference between the $1, 500 fine specified when the court pronounced her sentence and the $1, 755 fine reflected in each judgment "may reflect the $255 fee specified by ORS 813.020(1) and ORS 813.030, " but maintains that "the court's comments at sentencing suggest that it intended to waive fees due to defendant's indigence."

         As an initial matter, we note that, although defendant did not preserve her challenge to the additional $255 fines reflected in the judgments, she did not need to because she did not have notice or an opportunity to do that before entry of the judgments. See State v. Lewis, 236 Or.App. 49, 52, 234 P.3d 152, rev den, 349 Or. 172 (2010) (holding "preservation was not required" when the challenged portions of the defendant's sentence were not announced in open court, but instead simply appeared on the face of the judgment).

         We review sentencing decisions for legal error. State v. Beckham, 253 Or.App. 609, 612, 292 P.3d 611 (2012). Because defendant is appealing misdemeanor sentences after trial, our disposition is governed by ORS 138.040, which mandates that, where the disposition imposed by the trial court "exceeds the maximum allowable by law, " we are to "direct the court from which the appeal is taken to impose the disposition that should be imposed." ORS 138.040.[3]

         [292 Or. 373] The parties cite scant authority in support of their respective positions on the proper scope of remand. Defendant argues that under ORS l38.222(5)(a) resentencing is not required here and that we should "reverse and remand for entry of corrected judgments that impose a $1, 500 fine for each of the DUII charges." The problem with defendant's argument is that ORS 138.222 "applies only in felony sentencing, " Beckham, 253 Or.App. at 615, and defendant was convicted of misdemeanors. The state's argument suffers from a similar problem. The state argues that remanding the case for further proceedings is appropriate given our decision in State v. Johnson,260 Or.App. 176, 316 P.3d 432 (2013). Johnson provides little guidance, however, because the defendant in Johnson was ...


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