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State v. Walton

Court of Appeals of Oregon

May 30, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
MICHAEL SCOTT WALTON, aka Michael Walton, Defendant-Appellant.

          Submitted January 19, 2017

          Multnomah County Circuit Court 14CR08760; A159620 Amy Holmes Hehn, Judge.

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

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

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Allen, Judge pro tempore.

         Case Summary:

         Defendant appeals a supplemental judgment ordering him to pay restitution. Defendant argues that the trial court lacked authority to order restitution because the victim and the court did not follow the procedural requirements set out in ORS 147.500 to 147.550, the statutes effectuating crime victims' rights under Article I, section 42, of the Oregon Constitution. Defendant's contention is unpreserved and he requests that the Court of Appeals review the trial court's order for plain error. Held: The Court of Appeals declined to exercise its discretion to correct the error without deciding whether the trial court plainly erred.

         [297 Or.App. 711]EGAN, C. J.

         Defendant appeals a supplemental judgment ordering him to pay restitution, arguing that the trial court lacked authority to order restitution outside the procedural requirements set out in ORS 147.500 to 147.550, the statutes effectuating crime victims' rights under Article I, section 42, of the Oregon Constitution. Defendant presents this specific argument for the first time on appeal and requests that we review the trial court's order for plain error. The state responds that the trial court did not plainly err because the error was not "obvious."[1] Furthermore, the state argues that, even if the trial court did plainly err, we should not exercise our discretion to correct the error. We need not decide whether the error was plain because even if we were to do so, we would decline to exercise our discretion to correct it. Accordingly, we affirm.

         Defendant pleaded guilty to one count of second-degree criminal mischief on July 15, 2014. Defendant stipulated to his liability for restitution but requested a hearing to contest the amount. The trial court sentenced defendant to bench probation and set a restitution hearing[2] for October 7, 2014, 84 days later. However, the court failed to docket the hearing and the hearing did not take place. No one brought the error to the court's attention at that time.

         [297 Or.App. 712] On November 20, 2014, 128 days after defendant was sentenced, the victim called the district attorney's office to inquire about the restitution. Due to the assigned prosecutor being "out of the office" at that time and other staffing issues, the district attorney waited until March 23, 2015- 251 days after sentencing-to file a motion to extend the restitution deadline and to set a hearing.

         On April 17, 2015, the trial court held a hearing to address the restitution issue. The state made two arguments in support of its untimely restitution request. First, the state argued that good cause existed to authorize restitution under ORS 137.106(1)(a).[3] Second, the state alternatively argued that, regardless of the untimely request, the court should still order that defendant pay restitution so as to avoid violating the victim's right "to receive prompt restitution" under Article I, section 42. Defendant responded that (1) no good cause existed to justify an extended deadline and (2) the trial court lacked authority to order restitution under Article I, section 42, because the state lacked standing to assert a claim on the victim's behalf. The victim spoke on his own behalf through an interpreter, and told the trial court that he was "seeking restitution *** caused by the defendant[.]" Defendant agreed that the restitution amount that the victim sought was factually supported.

         The trial court agreed with defendant's argument as to ORS 137.106, determining that the state had not shown good cause for the delay past the 90-day deadline required by that statute. However, relying on our decision in State v. Thompson, 257 Or.App. 336, 306 P.3d 731, rev den, 359 Or. 390 (2013), the court concluded that the situation amounted to a violation of the victim's Article I, section 42, right to prompt restitution, and further, that it had authority to order defendant to pay restitution to remedy that violation. The court explained:

"I don't think that it's really giving the victim a realistic remedy to suggest that I should not order restitution and [297 Or.App. 713] then put [the victim] to the task, when he's done everything he needs to do, including being here twice for court hearings, to have to then initiate some sort of separate legal ...

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