480 P.3d 1026
Or. Ct. App.2021Background
- Defendant Rhonda Colgrove pleaded guilty to DUII and entered a one-year diversion program that required completion of conditions, including attendance at a victim impact panel.
- She did not attend the victim impact panel during the diversion period; the court issued a show-cause order and appointed counsel.
- The court terminated diversion, convicted and sentenced Colgrove, and entered an amended judgment imposing probation, a $2,000 DUII fine, a $255 DUII conviction fee, and a $100 probation fee.
- A separate supplemental judgment (labeled as such) ordered Colgrove to pay $70 toward court-appointed counsel costs.
- On appeal Colgrove challenged (1) the diversion termination based on the victim panel requirement, (2) several fines/fees (including the $255 fee), and (3) the $70 counsel-cost order. The court affirmed termination, vacated the $255 fee and remanded for resentencing, and reversed the supplemental judgment ordering $70.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether termination of diversion for failing to attend victim impact panel was erroneous | The state argued termination was valid; alternatively contended termination decision may be unreviewable because defendant pleaded guilty | Colgrove argued no deadline to attend was imposed and court could have retroactively waived the condition | Affirmed termination: court ordered attendance as a diversion condition, defendant failed to complete it within the one-year diversion period, and she never sought reconsideration or waiver |
| Whether imposition of the $255 DUII conviction fee was lawful | State treated the fee as mandatory | Colgrove argued the court mistakenly believed it lacked discretion to waive the fee for indigent defendants | Portion of amended judgment imposing the $255 fee vacated and remanded for resentencing because the trial court did not recognize its discretion to waive for indigence |
| Whether the court erred by imposing the $2,000 DUII fine and $100 probation fee without suspending any of them | State argued defendant failed to preserve any claim to suspension | Colgrove argued the court failed to recognize its discretion to suspend part or all of the fine/fee | Not decided on merits here; remand for resentencing allows the trial court to consider suspension discretion on these items |
| Whether ordering Colgrove to pay $70 for court-appointed counsel was supported by a finding on ability to pay | State relied on statute authorizing contributions when defendant has resources | Colgrove argued the record (financial affidavit showing $0 owed) cannot support the required finding of ability to pay | Supplemental judgment reversed: record lacks legally sufficient evidence to make the statutory finding, so ordering $70 was error |
Key Cases Cited
- State v. Canales, 301 Or App 668 (2020) (discussed reviewability and similar diversion-termination claim)
- Golik v. CBS Corp., 306 Or App 202 (2020) (when a court has discretion, appellate review looks for predicate legal error before assessing abuse of discretion)
- State v. McCarthy, 305 Or App 658 (2020) (procedures for review of supplemental judgments under ORS 151.487 and preservation rules)
- State v. Mendoza, 286 Or App 548 (2019) (ordering payment for court-appointed counsel without sufficient record is error)
- Private Capital Grp., LLC v. Harris, 273 Or App 529 (2015) (limited/"supplemental" judgments are appealable despite mislabeling)
- State v. Adams, 275 Or App 160 (2015) (illustrates court authority to suspend imposition or execution of part of a sentence, including fines)