State v. Almaraz-Martinez
282 Or. App. 576
Or. Ct. App.2016Background
- Defendant pleaded guilty to attempted second-degree assault and fourth-degree assault (domestic violence), and the victim received hospital treatment.
- Plea agreement and hearing noted defendant stipulated to “att fees” and that restitution was "TBD," with court leaving restitution open for 90 days.
- Initial judgment (Oct 28, 2015) imposed $624 in court-appointed attorney fees and reserved restitution to be determined within 90 days.
- On Feb 10, 2016, the court signed a supplemental judgment ordering $2,909.05 in victim restitution (ambulance + hospital bills) based on a DA request; the supplemental judgment was prepared by the DA’s office and cc’d defense counsel.
- Defendant did not object to restitution or attorney fees in the trial court and raises both issues for the first time on appeal.
Issues
| Issue | State's Argument | Flynn (Defendant)'s Argument | Held |
|---|---|---|---|
| Validity of restitution award when no evidentiary showing in record | Unpreserved; should be reviewed only for plain error; or DA provided notice via letter | No practical opportunity to object because record shows no notice; trial court lacked evidence of damages | Preservation exception applies; no evidence supports restitution; supplemental judgment reversed and remanded |
| Whether the court had jurisdiction to impose attorney fees without showing ability to pay | Unpreserved; alternatively, defendant stipulated to fees so no error | Trial court erred by imposing court-appointed attorney fees without evidence of ability to pay | Unpreserved; inviting conduct/plea stipulation bars review; declined to reach as plain error; fee award affirmed |
Key Cases Cited
- State v. McClelland, 278 Or App 138 (court reviews restitution for legal error and defers to findings supported by any evidence)
- Peeples v. Lampert, 345 Or 209 (preservation exception where party had no practical ability to raise issue)
- State v. DeCamp, 158 Or App 238 (post-judgment modification without notice—preservation impracticable)
- State v. Tippetts, 239 Or App 429 (remand for resentencing where restitution imposed without evidence of economic damages)
- State v. Wehr, 275 Or App 528 (trial court may not impose court-appointed attorney fees absent evidence defendant can or may be able to pay)
- State v. Cook, 267 Or App 776 (invited error/plea stipulation can preclude appellate review of sentencing issues)
- State v. Ferguson, 201 Or App 261 (party who is instrumental in bringing about error cannot complain on appeal)