Defendant appeals an amended judgment of conviction for theft in the first degree, ORS 164.055, contending that the trial court lacked authority to impose the amount of restitution that it did. Defendant contends that, because her plеa petition only specified criminal conduct that occurred over a 16-day period, the trial court could not lawfully impose restitution for criminal conduct spanning a 65-day period. We agree with defendant that thе trial court’s restitution order was plain error, and we conclude that it is appropriate to exercise our discretion to correct the error and remand for resentencing.
The facts are not disputed. Defendant worked as a cashier at Thrifty Market for 85 days beginning in April 2010 and ending in August 2010. Her employer became suspicious that defendant was stealing money from the register; a review of the store’s video surveillance system showed that defendant had stolen $1300 over a two-day period in July. She was also observed taking $270 on August 5. Defendant was charged with first-degree theft, ORS 164.055.
In a letter opinion, the trial court imposed $33,995 in restitution. As support for that figure, it cited the testimony of one of the people who helped defendant take the money from the store, who explained that she received $200 to $300 in cash each time she picked up money from defendant. The trial court then explained that, based on its previous experience with similar cases, the “embezzler” tends to underestimate thе amount of money that he or she took. The court then averaged the amounts that defendant took on the occasions that she had been observed stealing, reaching a $523 figure. It then gave defendant “the benefit of thе doubt” that she was not stealing during the first 20 days of her employment. The court multiplied the remaining 65 days of employment by $523 to arrive at $33,995 in restitution.
Relying primarily on State v. Howett,
On appeal, we began by interpreting the then-extant version of ORS 137.106, which authorized a trial court to order restitution when a person had been convicted of a crime that resulted in “pecuniary” damages. We noted that ORS 137.106 permitted restitution “as long as the damages were caused in a ‘but for’ sense by the criminal activities for which defendant was convicted or other criminal conduct admittеd.” Howett,
With the foregoing in mind, we held that the trial court erred. Specifically, we explained:
“Defendant was specifically charged with, and pleaded guilty to, theft in the first degree on or between October 3 and October 7,2000. Defendant was not charged with or convicted of theft occurring during the earlier period of time, and defendant did not admit to any other criminal conduct. Under the facts of this case, the court lacked authority to impose restitution in excess of the undisputed $ 843 that was taken over the five-day period alleged in the indictment, because the earlier damages did not arise from the criminal activities to which defendant pleaded guilty. State v. Seggerman,167 Or App 140 , 145,3 P3d 168 (2000) (‘Defendant cannot be required to pay restitution for pecuniary damages arising out of criminal activity for which he was not convicted orwhich he did not admit having committed.’).”
Howett,
The state responds that defendant failed to make any argument under Howett before the trial court and that the argument is, therefore, unpreserved for purposes of this appeal. To be raised and considеred on appeal, an issue “ordinarily must first be presented to the trial court.” Peeples v. Lampert,
Defendant nonetheless urges us to consider her аrgument as a matter of plain error. See ORAP 5.45(1) (providing that “the appellate court may consider an error of law apparent on the record”). An appellate court may exercise its discretion to considеr an unpreserved argument, provided that (1) the error is one of law, (2) the legal point is “obvious, not reasonably in dispute,” and (3) the error appears on the “face of the record,” viz., we “need not go outside the record or choose between competing inferences to find it, and the facts that comprise the error are irrefutable.” State v. Brown,
“[t]he competing interests of the parties; the nature of the case; thе gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served in the case in another way * *
Ailes v. Portland Meadows Inc.,
We conclude that this is an appropriate case in which to exercise our discretion to correct the error. Most importantly, the gravity of the error is substantial; defendant was ordеred to pay a large sum in restitution that went well beyond what either her conviction or her admitted criminal conduct would support. Next, there is no danger that defendant made a “strategic choice” not to assert the lеgal argument she now makes on appeal. Cf. State v. Fults,
Remanded for resentencing; otherwise affirmed.
Notes
Defendant was also charged with possession of methamphetamine, ORS 475.894; that count was later dismissed and is not at issue in this appeal.
Since Howett was decided, the legislature has amended the relevant restitution statutes several times. See Or Laws 2003, сh 670, § 1; Or Laws 2005, ch 564, §§ 1, 2; Or Laws 2007, ch 425, § 1; Or Laws 2007, ch 482, § 1. Nonetheless, we have consistently upheld the rule announced in that case under subsequent versions of the statute, most recently in State v. Carson,
The state attempts to distinguish this case from Howett and Seggerman by pointing out that the information in this case was open-ended, insofar as it alleged that defendant stole “an amount greater than $1,000” and its only temporal allegation was that defendant committed the offense “on or about July 21, 2010.” Thus, reasons the state, the information can be read as supporting restitution for a 65-day period of criminal conduct. That argument is not tenable because the plea petition operated to limit the conduct that defendant “admit [ted] having committed.” Seggerman,