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State v. Baccaro

Court of Appeals of Oregon

October 16, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
MICHAEL JESSE BACCARO, Defendant-Appellant.

          Argued and submitted July 31, 2018.

          Lincoln County Circuit Court 16CR45715 Sheryl Bachart, Judge.

          Laura Eve Coffn, Deputy Public Defender, argued the cause for appellant.

          On the brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Vanessa Areli, Deputy Public Defender, 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 Ortega, Presiding Judge, and James, Judge, and Powers, Judge.[*]

         [300 Or.App. 132] Case Summary:

         Defendant appeals a judgment of conviction for fourth-degree assault, ORS 163.160; harassment, ORS 166.065; disorderly conduct, ORS 166.025; and attempted criminal mischief, ORS 161.405. In a single assignment of error, defendant challenges the imposition of a $100 bench probation fee, arguing that the trial court erred by imposing the fee outside of his presence. The state responds that any such error is harmless because imposition of the fee is required by statute. Held: The Court of Appeals concluded that defendant's $100 bench probation fee was part of his sentence and, under ORS 137.010, the trial court had the authority to suspend execution of that portion of the sentence. Therefore, defendant had a right to advocate that the trial court use its discretionary power to suspend execution of his bench probation fee and was denied the opportunity because the imposition of the fee was done outside of his presence.

         [300 Or.App. 133] JAMES, J.

         Defendant appeals a judgment of conviction for fourth-degree assault, ORS 163.160; harassment, ORS 166.065; disorderly conduct, ORS 166.025; and attempted criminal mischief, ORS 161.405. In a single assignment of error, defendant challenges the imposition of a $100 bench probation fee, arguing that the trial court erred by imposing the fee outside of his presence. The state responds that any such error is harmless because imposition of the fee is required by statute. We vacate the portion of the judgment requiring defendant to pay the $100 bench probation fee and remand for resentencing.

         The facts are procedural and not in dispute. Defendant was convicted after a jury trial. At the sentencing hearing, at which defendant was present, the trial court imposed 60 months of bench probation but did not mention the $100 bench probation fee required by ORS 137.540(8).[1]The written judgment entered later that day included the bench probation fee.

         On appeal, defendant argues that the trial court erred by imposing the fee in defendant's absence, in violation of Article I, section 11, of the Oregon Constitution and the Fourteenth Amendment to the United States Constitution. While this case was pending in this court, we decided State v. Hillman, 293 Or.App. 231, 426 P.3d 249 (2018), in which we held that the trial court erred by imposing a probation violation fee pursuant to a different statute, ORS 137.540 (11)(a) (2015), in the written judgment when that fee was not announced in the defendant's presence. Id. at 232.

         The state concedes that the principle in Hillman applies with equal force to a bench probation fee under ORS 137.540(8) and that the trial court consequently erred by imposing that fee in the written judgment without first announcing it in defendant's presence. The state argues, however, that the error was harmless. According to the [300 Or.App.134] state, because the fee is mandatory under ORS 137.540(8), the trial court had no discretion not to impose it, and thus any imposition of such a mandatory fee outside of defendant's presence could not result in actual harm to defendant. Defendant argues that a trial court does have statutory discretion to waive the fee or, in the alternative, authority to modify the fee for ...


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