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State v. Saunders

Court of Appeals of Oregon

June 26, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
RASHI WILLIAM SAUNDERS, Defendant-Appellant.

          Submitted March 6, 2019

          Multnomah County Circuit Court 16CR77978 John A. Wittmayer, Judge.

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

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

          Before Ortega, Presiding Judge, and Powers, Judge, and Kistler, Senior Judge.

         Case Summary:

         Defendant challenges a term in the judgment directing him to pay monetary obligations pursuant to ORS 161.675, arguing that ORS 161.675(1) prohibits the court from enforcing the monetary portion of the judgment during defendant's incarceration because the trial court did not find that defendant had assets with which to pay. He also challenges a term in the judgment allowing the trial court to add a collection fee, premised on his contention that the clerk acted contrary to ORS 161.675.

         Held:

         The trial court did not err. The record does not show that the trial court attempted to collect the monetary obligations during defendant's incarceration. Therefore, this case is controlled by State v. Foos, 295 Or.App. 116, 433 P.3d 493 (2018), which upheld the validity of a similar term concerning the collection of monetary obligations. Because defendant's argument regarding the collection fee term was premised on his contention that the clerk sought to enforce the monetary obligations while defendant was in custody, it likewise fails.

         [298 Or.App. 292] ORTEGA, P. J.

         Following a jury trial, defendant was convicted of one count of first-degree criminal mischief and one count of second-degree criminal mischief, sentenced to 20 months' incarceration, and ordered to pay $2, 220.57 in restitution. We write to address defendant's fourth and fifth assignments of error, in which he challenges two terms in the judgment, and reject the remaining assignments without discussion.[1]

         Beginning with his fifth assignment, defendant challenges a term in the judgment providing that "[p]ayment of the fines, fees, assessments, and/or attorney's fees noted in this and any subsequent Money Award shall be scheduled by the clerk of the court pursuant to ORS 161.675." Defendant argues that ORS 161.675(1) prohibits the court from enforcing the monetary portion of the judgment during defendant's incarceration, given that the trial court did not find that defendant had assets with which to pay. In State v. Foos, 295 Or.App. 116, 119-20, 433 P.3d 493 (2018), we previously held that, without some evidence that the clerk is seeking to enforce the judgment, that term is not invalid on its face because it directs the court to act pursuant to ORS 161.675(1), and we assume the clerk will act in accordance with that statute.

         Attempting to distinguish Foos, defendant argues that, here, there is evidence that the clerk failed to comply with ORS 161.675(1) because the trial court register reflects that the clerk sought to obtain the monetary obligations during defendant's incarceration. We disagree with defendant's view of the record. Defendant was sentenced on August 1, 2017. The official register reflects two relevant entries made on August 9, 2017. One entry states, "Local Restitution Project-Remove from Collections," and further instructs that "[post-prison supervision]-needs payment plan." The second entry on that date shows defendant's [298 Or.App. 293] projected release date to be April 25, 2018.[2] An entry on September 18, 2017, shows a "Judgment-Payment Schedule Assessment." On May 25, 2018, one month after defendant's projected release date, an entry shows that a letter was sent to defendant notifying him that his monetary obligations were delinquent. Thus, we find no support in the record for defendant's contention that the clerk attempted to collect the money owed while defendant was incarcerated. Rather, the fact that the letter of delinquency was sent one month after his projected release date does not support a logical inference that the clerk sought repayment while defendant was in custody. For that reason, this case is not distinguishable from, and is controlled by, Foos.

         In his fourth assignment, defendant challenges the term in the judgment stating that the "court may increase the total amount owed by adding collection fees and other assessments *** without further notice to the defendant and without further court order." Defendant argues that, because ORS 161.675(1) prevents the court from enforcing the monetary obligation during defendant's incarceration, ORS 1.202(1) prohibits the court from imposing a collection fee, making that provision invalid. See ORS 1.202(1) (requiring the court to set a payment schedule if the court orders a fee to pay for the costs of collecting money owed by a defendant). Defendant's argument is premised on his contention that the clerk acted contrary to ORS 161.675(1) in seeking to enforce the monetary obligations in this case, an ...


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