State v. Foos
295 Or. App. 116
Or. Ct. App.2018Background
- Defendant pleaded guilty to identity theft; one count dismissed. Sentenced to 40 months' incarceration (departure under ORS 137.717), one year post-prison supervision, and $522 restitution.
- Final judgment included routine clerk-direction language: "Payment of the fines, fees, assessments, and/or attorney's fees noted in this and any subsequent Money Award shall be scheduled by the clerk of the court pursuant to ORS 161.675."
- Defendant did not object at sentencing because the language was added in the clerk-prepared final judgment; issue raised on appeal.
- Defendant contended the judgment was unlawful because she received a term of incarceration and the court made no express finding that she had assets to pay while imprisoned (required by ORS 161.675(1)).
- The State conceded preservation is not disputed; the court considered whether the clerk-directed wording in the judgment, standing alone, is reversible error.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether clerk-direction in judgment ordering payments "pursuant to ORS 161.675" unlawfully authorizes collection during incarceration | The judgment is valid; clerk must act pursuant to statute and will comply with ORS 161.675 | The judgment is unlawful on its face because defendant was incarcerated and the court made no express finding of assets to allow enforcement during imprisonment | Judgment is not unlawful on its face; wording simply directs clerk to follow ORS 161.675 and does not authorize enforcement contrary to the statute |
| Whether clerk may impose a payment schedule post-release under ORS 161.675(3) despite no probation or suspended sentence | Any clerk action must be pursuant to ORS 161.675 | Clerk could impose schedule regardless, making the judgment improper | Court held ORS 161.675(3) conditions scheduling on probation or suspension; judgment does not override those statutory preconditions |
| Whether appellate court must reverse based solely on appearance of clerk-direction language in judgment | Court should assume clerk will follow statute; no reversal absent evidence clerk acted improperly | Appearance of the clause is reversible error even without clerk action | Held that prior cases treating the clause alone as reversible error are disavowed; must show clerk is acting inconsistent with statute to obtain relief |
| Preservation: whether defendant forfeited challenge by not objecting at sentencing | State does not dispute preservation; court may review despite lack of contemporaneous objection | Defendant excused from contemporaneous objection because language first appeared in final judgment | Court reviews and finds preservation not an impediment to relief if clerk acts improperly |
Key Cases Cited
- McCarthy v. Oregon Freeze Dry, Inc., 327 Or. 84 (noting a party need not preserve an issue first raised in a court's written order)
- State v. Martinez, 282 Or. App. 917 (excusing contemporaneous objection where improper sentencing term appeared only in final judgment)
- State v. Lewis, 236 Or. App. 49 (same principle regarding clerk-added sentencing language)
- State v. DeCamp, 158 Or. App. 238 (a party cannot be required to object when unaware of court's intended action)
- State ex rel. v. Tolls, 160 Or. 317 (a clerk is the arm of the court and must act pursuant to statutory and court directives)