396 P.3d 302
Or. Ct. App.2017Background
- Defendant was convicted in 2015 of three counts of first-degree sexual abuse for offenses committed 2006–2008 and sentenced with monetary obligations on each count.
- Trial court imposed: $607 unitary assessments, $25 county assessments, and a $200 fine on each count.
- Defendant appealed, challenging the legality of unitary assessments (arguing the enabling statute had been repealed), the county assessments (arguing they were imposed outside his presence), and the fines (arguing the court failed to consider ability to pay).
- The parties agreed the unitary-assessment statute had been repealed in 2011, but the court considered a 2012 legislative provision stating the repeal applies only to offenses committed on or after January 1, 2012.
- The court found the unitary assessments valid because defendant’s offenses predated January 1, 2012 and the 2012 law preserved former ORS 137.290 for pre‑2012 offenses; it reversed the $25 county assessments because they were first imposed in the written judgment outside defendant’s presence.
- The court declined to reverse the $200 fines, finding the record permits an inference the trial court considered defendant’s ability to pay and therefore no plain error was shown.
Issues
| Issue | Plaintiff's Argument (State) | Defendant's Argument | Held |
|---|---|---|---|
| Legality of $607 unitary assessments (statute repealed before sentencing) | Unitary assessments invalid because former ORS 137.290 was repealed in 2011 and not in effect at sentencing | Unitary assessments invalid because repeal applied generally and statute was not in effect when sentenced | Rejected — 2012 legislation preserved former ORS 137.290 for offenses committed before Jan 1, 2012; defendant’s crimes predated that date, so assessments valid |
| Imposition of $25 county assessments (not announced in open court) | Conceded error — assessments first appear in written judgment | Argued preservation not required because defendant had no opportunity to object | Reversed — fees imposed outside defendant’s presence; imposing fees in written judgment alone violates ORS 137.030 |
| $200 fines imposed without explicit finding on ability to pay | Argued record supports inference court considered ability to pay; no plain error | Court failed to consider ability to pay despite declining court‑appointed fee based on inability | Affirmed — record reasonably supports inference court weighed defendant’s circumstances; plain error not shown |
| Preservation/plain error review for unobjected items | N/A | Objected to unitary and fines only on plain-error grounds | Court allowed plain-error review for unitary and fines but required error to be apparent; unitary assessments upheld due to statutory preservation, fines not plain error |
Key Cases Cited
- State v. Wills, 260 Or. App. 440 (2013) (accepted state concession that unitary assessments were imposed under a statute not in effect at sentencing)
- State v. Johnson, 260 Or. App. 176 (2013) (trial court erred by imposing fees without announcing them in open court)
- State v. Jacobs, 200 Or. App. 665 (2005) (defendant has right to have sentence pronounced in open court; preservation not required when defendant had no notice)
- State v. Packer, 140 Or. App. 488 (1996) (court must consider defendant’s ability to pay before imposing a fine)
- State v. Brown, 310 Or. 347 (1990) (plain-error review requires error to be apparent on face of record)