STATE OF OREGON, Plaintiff-Respondent, v. MICKEY ALLEN SHEPHERD, Defendant-Appellant.
Josephine County Circuit Court 15CR19170; A167327
Court of Appeals of Oregon
Submitted November 26, 2019, affirmed January 29, 2020
petition for review denied June 4, 2020 (366 Or 552)
302 Or App 118 | 459 P3d 957
Thomas M. Hull, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sarah De La Cruz, Deputy Public Defender, Office of Public Defense Services, filеd the brief for appellant. Mickey Allen Shepherd filed the supplemental brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, filed the briefs for respondent.
Before Tookey, Presiding Judge, and Aoyagi, Judge, and Sercombe, Senior Judge.
PER CURIAM
Affirmed.
Aoyagi, J., concurring.
PER CURIAM
Defendant was convicted of driving under the influence of intoxicants (DUII),
Defendant‘s argument hinges on
“[i]n determining whether to impose a fine and its amount, the court shall consider *** [t]he financial resources of the defendant and the burden that payment of a fine will impose, with due regard to the other obligations of the defendant,” as well as “[t]he ability of the defendant to pay a fine on an installment basis or on other conditions to be fixed by the court.”
ORS 161.645 (emphasis added).
Defendant acknowledges that he did not preserve the claim of error but argues that we may nonetheless reverse because the trial court committed “plain error” in imposing the fine without considering the factors identified in
An alleged error is susceptible to plain-error review only if it is an error of law; is “obvious, not reasonably in dispute“; and appears on the reсord. State v. Corkill, 262 Or App 543, 551, 325 P3d 796, rev den, 355 Or 751 (2014). In this case, even assuming that
Affirmed.
AOYAGI, J., concurring.
I agree with the majority that Wheeler, Smith, and Manoff foreclose any possibility of plain-error review in this case. Because defendant has not asked us to overrule those precedents, or distinguished them, the majority‘s disposition is necessarily correct. See Farmers Ins. Co. v. Mowry, 350 Or 686, 698, 261 P3d 1 (2011) (“[W]e begin with the assumption that issues considered in our prior cases are correctly decided, and the party seeking to change a precedent must assume responsibility for affirmatively persuading us that we should abandon that precedent.” (Intеrnal quotation marks omitted.)); Beall Transport Equipment Co. v. Southern Pacific, 186 Or App 696, 700 n 2, 64 P3d 1193, adh‘d to on recons, 187 Or App 472, 68 P3d 259 (2003) (stating that it is not our “proper function to make or develop а party‘s argument“). I write separately, however, to acknowledge what I believe to be a logical flaw in that precedent.1
Later the same year, we relied on Wheeler to reach the same result in State v. Smith, 274 Or App 562, 363 P3d 514 (2015), rev den, 358 Or 551 (2016). In Smith, the defendant was convicted of unlawful use of a weapon and ordered to pay a $1,500 fine. Id. at 566. Citing Wheeler, we rejected the defendant‘s plain-error challenge to the fine on appeal, concluding that the issue “[w]as not susceptible to plain-error review,” because, although the record “contain[ed] no evidence that defendant ha[d] the financial resources to enable him to pay the fine,” it also “d[id] not establish that the court failed to consider defendant‘s ability to pay.” Id. at 568 (emphasis in original).
Most recently, in State v. Manoff, 295 Or App 566, 435 P3d 803 (2019), the defendant was convicted of property crimes, ordered to pay $600 in fines, and on appeal raised a plain-error challenge to the fines, because “the record lаck[ed] any evidence that he ha[d] the ability to pay the fines.” Id. at 567. Relying on Wheeler and Smith, we again
noted that
In his briefing on appeal, defendant does not offer any basis tо distinguish Wheeler, Smith, or Manoff, nor does he ask us to overrule that line of cases. We will overrule existing precedent only if it is “plainly wrong“—“a rigorous standard grounded in presumptive fidelity to stare decisis,” State v. Civil, 283 Or App 395, 406, 388 P3d 1185 (2017)—and typically only when requested. Farmers Ins. Co., 350 Or at 698. For both of those reasons, I agree with the majority that we should affirm in this case.
At the same time, defendant‘s arguments call attention to an apparent logical flaw in Wheeler and its progeny that I believe warrаnts acknowledgement. Specifically, I agree with defendant that, if the record establishes that, at the time of sentencing, the trial court had no information regarding a defendant‘s financial resources and the burden that payment of a fine would impose—as defendant contends was the case here—the alleged error in imposing a fine is apparеnt on the record. See State v. Corkill, 262 Or App 543, 551, 325 P3d 796, rev den, 355 Or 751 (2014) (one of the requirements for plain-error review is that the error “appears on the face of the record“). Put simply, а court cannot consider information that it does not have. Thus, I disagree with our existing precedent to the extent that it holds that, when a trial court has no information relevant to thе factors in
Of course, it is a separate question whether imposing a fine in the absence of the
discretion to correct the error in any given case. There is good reason to approach plain-error review cautiously. State v. Burris, 301 Or App 430, 434, 456 P3d 684 (2019). But we will never reach those questions or have the opportunity to exercisе our discretion if, every time a criminal defendant makes a plain-error challenge to the imposition of a fine on a record silent as to his or her financial circumstances, we summarily reject the defendant‘s argument on the basis that the alleged error does not “appear on the record.”
Fines are imposed in a vast number of criminal cаses and, even if small, can be very burdensome to indigent defendants. That is not to say that fines should not be imposed or to question the broad discretion that trial courts have under