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State v. Nosbisch

Court of Appeals of Oregon

June 12, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
GENE NOSBISCH, Defendant-Appellant.

          Argued and submitted July 25, 2017

          Union County Circuit Court F 2175 5; Brian Dretke, Judge.

          Anna E. Belais, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Lauren P. Robertson, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and James, Judge.

         Case Summary:

         Defendant appeals the trial court's order requiring him to pay restitution after he pleaded guilty to fourth-degree assault. Defendant argues that the trial court erred in (1) refusing to allow him to be heard on the issue of the amount of restitution, and (2) ordering restitution when there was insufficient supporting evidence in the record.

         Held:

         The trial court erred in refusing to allow defendant to be heard on the matter of restitution.

         [298 Or.App. 2] EGAN, C. J.

         This is a criminal appeal in which defendant challenges the trial court's restitution award after he pleaded guilty to fourth-degree assault. After defendant pleaded guilty, the trial court sentenced defendant at a separate hearing. Relevant to this appeal is the court's order for defendant to pay $1, 111.04 in restitution. Defendant argues that the trial court erred in (1) refusing to allow him to be heard on the issue of the amount of restitution, and (2) ordering restitution when there was insufficient supporting evidence in the record. We agree with defendant that the court erred in refusing to allow him to be heard on the matter of restitution, and therefore remand for resentencing.

         Defendant pleaded guilty to fourth-degree assault as a result of plea negotiations with the state that involved the dismissal of other charges. The trial court found a factual basis for and accepted defendant's guilty plea. The trial court set sentencing for a later date. No discussion about restitution occurred at the time defendant entered his plea. Defendant signed a plea petition, in which defendant checked two boxes indicating that he "understood] that, in addition to other fines, the judge may order [defendant] to pay restitution * * * or an amount to be determined by the judge." The petition also stated that defendant "acknowledged] that everything that has been agreed to is included in this document or incorporated by reference." The document did not refer to or incorporate any other agreement between the parties regarding restitution.

         At the sentencing hearing, the state failed to present a printed copy of the original offer containing its sentencing recommendations, but the state requested that the court follow "what's ever [sic] in [the] offer." The following conversation ensued:

"[THE STATE]: I'd ask the court to follow the recommendation. I think we agreed to that. *** The restitution for the door, the information that we have from the housing authority was a hundred and eleven dollars. It's in the ...

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