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State v. Thomas

Court of Appeals of Oregon

July 11, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
ALLEN RAYMOND THOMAS, Defendant-Appellant.

          Submitted September 19, 2016

          Lake County Circuit Court 100019CR; Rodger J. Isaacson, Judge.

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

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, fled the brief for respondent.

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

         Case Summary:

         Defendant appeals a judgment of conviction for three counts of unlawful sexual penetration in the first degree, ORS 163.411. Defendant argues that (1) the mandatory 300-month sentence imposed on each count is unconstitutionally disproportionate, in violation of Article I, section 16, of the Oregon Constitution and the Eighth Amendment to the United States Constitution, and that the trial court erred in concluding otherwise; (2) the trial court committed plain error when it ordered him to pay $1, 600 toward the cost of court-appointed counsel; and (3) the trial court erred in ordering him to pay a "Mandatory State Amt." of $107. Held: Defendant's sentence was not unconstitutionally disproportionate and his arguments failed as they were contrary to binding precedent. Additionally, in view of prior Court of Appeals decisions addressing the point, the trial court did not plainly err when it made a finding that defendant had the ability to pay $1, 600 toward court-appointed counsel based on the fact that defendant posted funds as security subject to a condition that the monies could be used to pay court-imposed fines or other expenses. However, as the state concedes, the [292 Or.App. 757] trial court plainly erred in imposing a mandatory state amount of $107 because it did not have any statutory authority for the imposition of the obligation.

         Portions of the judgment requiring defendant to pay a $107 "Mandatory State Amt." reversed; otherwise affirmed.

         [292 Or.App. 758] LAGESEN, P. J.

         Defendant appeals a judgment of conviction for three counts of unlawful sexual penetration in the first degree, ORS 163.411. He contends that (1) the mandatory 300-month sentence imposed on each count of conviction is unconstitutionally disproportionate, in violation of Article I, section 16, of the Oregon Constitution and the Eighth Amendment to the United States Constitution, and that the trial court erred in concluding otherwise; (2) the trial court committed plain error when it ordered him to pay $1, 600 toward the cost of court-appointed counsel; and (3) the court erred in ordering him to pay a "Mandatory State Amt." of $107. For the reasons that follow, we accept the state's concession that the trial court erred in imposing a mandatory state amount and reverse the portion of the judgment ordering defendant to pay that amount, but otherwise affirm.

         The facts pertinent to the issues on appeal are largely procedural and, in any event, are not disputed. Defendant, who was 20 years old at the time, used his hand to penetrate the vagina of a nine-year-old girl. He did so multiple times over the course of a two-day period. For that conduct, a jury convicted defendant of three counts of unlawful sexual penetration in the first degree, ORS 163.411. On each of the three counts, the trial court sentenced defendant to concurrent 300-month terms of incarceration, as required by ORS 137.700(2)(b)(F). It did so over defendant's objection that the 300-month term of imprisonment was unconstitutionally disproportionate, both facially and as applied to him, in violation of Article I, section 16, and the Eighth Amendment.

         Before trial, defendant twice posted security deposits to secure his release from jail. He posted $10, 000 to secure his release initially and, after he had been jailed again for violating the conditions of his release, he posted another $2, 500. Each time defendant posted money as security, he signed an agreement. In that agreement, he acknowledged that the amounts posted would be used to satisfy any financial obligations imposed in the instant case and any outstanding financial obligations from prior cases and, therefore, might not be returned to him:

         [292 Or.App. 759] "1. AS THE PERSON POSTING SECURITY. YOU MAY NOT HAVE YOUR MONEY RETURNED.

"The security deposit you are posting, less the security release costs (15%), will be applied toward payment of any unpaid fines, costs, application fees, contribution fees, assessments, restitution or court-appointed attorney fees and expenses that the defendant may have in this case or on any other court case where the defendant owes money to the court, including the defendant's past due child support obligations. If all of defendant's financial obligations have been ...

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