459 P.3d 957
Or. Ct. App.2020Background
- Defendant Shepherd convicted of DUII (Class A misdemeanor) and sentenced to pay a $1,255 fine (judgment labels it "Fine - DUII").
- Defendant did not raise an objection at sentencing and challenges the fine on appeal, seeking plain-error review.
- He contends the trial court failed to consider ORS 161.645 factors: the defendant’s financial resources and ability to pay (including installment ability).
- The appellate majority relied on prior Oregon Court of Appeals precedents (Wheeler, Smith, Manoff) holding that plain-error review is unavailable for fines when the record does not clearly show a failure to consider ORS 161.645.
- Court of Appeals affirmed the fine; Judge Aoyagi concurred, agreeing with result but noting a logical flaw in the precedent: if the record contains no financial information, it is apparent the court could not have actually considered those factors.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether imposition of a fine without a record showing consideration of ORS 161.645 factors is subject to plain-error review | Prior precedents foreclose plain-error review; statute requires only that court "consider" ability to pay and record does not show failure | Trial court plainly erred by imposing fine without considering defendant’s financial resources and burden | Affirmed — plain-error review foreclosed by controlling precedents (Wheeler, Smith, Manoff); no relief |
| Whether ORS 161.645 applies to mandatory minimum DUII fines | State relied on precedent; court assumed applicability because fine exceeded minimum | Defendant argued court failed to follow ORS 161.645; concurrence noted arguable inapplicability to mandatory minimums but not raised to overrule precedent | Court assumed ORS 161.645 applies (since fine exceeded minimum) and resolved case under precedent |
Key Cases Cited
- State v. Wheeler, 268 Or App 729 (rejecting plain-error review of fines on record-silence ground)
- State v. Smith, 274 Or App 562 (same)
- State v. Manoff, 295 Or App 566 (same)
- State v. Corkill, 262 Or App 543 (plain-error review requirements)
- Farmers Ins. Co. v. Mowry, 350 Or 686 (stare decisis/standard for overruling precedent)
- State v. Burris, 301 Or App 430 (caution on exercising plain-error discretion)