464 P.3d 518
Or. Ct. App.2020Background
- Defendant convicted of misdemeanor DUII (ORS 813.010) and driving while suspended (ORS 811.175).
- At sentencing the court announced 36 months probation and conditions including court monitoring, attendance at a victim impact panel, and a mandatory alcohol evaluation; the court announced a $2,000 minimum fine and a $255 DUII fee and said it would not impose attorney fees.
- The written judgment entered later added three fees that were not pronounced at the sentencing hearing: a court monitoring fee, a victim impact panel fee, and a $150 substance abuse evaluation fee.
- Defendant appealed, arguing the court violated his constitutional right to be present at sentencing by imposing those fees in the written judgment for the first time.
- The state conceded error but argued the appeal was moot or the errors were harmless; the court found the appeal not moot and held at least one error (victim impact panel fee) was not harmless, so remanded for resentencing on the challenged judgment and affirmed the later judgment.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether imposing fees in a written judgment that were not pronounced at the sentencing hearing violates defendant's right to be present | State essentially concedes error but contends appeal may be moot and errors may be harmless | Imposition outside presence violated constitutional right to be present and denied opportunity to seek leniency or offset fees given financial circumstances | Court: trial court erred by imposing the three fees for the first time in the written judgment; appeal not moot |
| Mootness of the appeal | The state argued the error was moot because probation terms were continued in a later judgment | Defendant preserved the appeal and sought relief from the original written judgment | Court: appeal not moot because later judgment continued terms rather than reimposed them and court declined to reiterate fines and fees |
| Harmlessness of each fee (monitoring fee, victim impact panel fee, evaluation fee) | State argued some fees were mandatory or already ordered in another case so any error was harmless | Defendant argued even mandatory fees are not automatically harmless because he could have asked the court to offset or suspend other fees given financial circumstances; monitoring fee may have been waivable; record does not show victim panel fee was ordered elsewhere | Court: at least one error (victim impact panel fee) was not harmless; remand for resentencing required; did not resolve harmlessness of the other two fees because resentencing will occur |
Key Cases Cited
- State v. Baccaro, 300 Or App 131 (2019) (trial court errs when written judgment imposes a fee not pronounced at sentencing)
- State v. Coghill, 298 Or App 818 (2019) (same principle; written judgment imposed fee not pronounced in defendant's presence)
- State v. Broyles, 296 Or App 358 (2019) (written judgment imposing a larger fine than pronounced is error)
- State v. Brooks, 285 Or App 54 (2017) (written judgment imposed assessments not pronounced at sentencing)
- State v. Kasper, 275 Or App 423 (2015) (written judgment imposed attorney fees not pronounced at sentencing)
- State v. Jacobs, 200 Or App 665 (2005) (denial of opportunity to be present at sentencing is not harmless because defendant loses chance to plead for leniency)
- State v. Anotta, 302 Or App 176 (2020) (remand for resentencing is proper when sentencing error requiring resentencing is found)