State v. Carachuri ( 2024 )

No. 53 January 31, 2024 443
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
ALEX FERDENCIO CARACHURI,
Defendant-Appellant.
Washington County Circuit Court
21CR22896; A177103
Ricardo J. Menchaca, Judge.
Argued and submitted June 5, 2023.
David L. Sherbo-Huggins, Deputy Public Defender,
argued the cause for appellant. On the brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, and
Mark J. Kimbrell, Deputy Public Defender, Office of Public
Defense Services.
Shannon T. Reel, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Shorr, Presiding Judge, Mooney, Judge, and
Pagán, Judge.
MOONEY, J.
Remanded for resentencing; otherwise affirmed.
444 State v. Carachuri
MOONEY, J.
Defendant drove recklessly as he argued with his
girlfriend. He ultimately lost control of the car and crashed
into a guardrail. After pleading guilty to several crimes,
including coercion, recklessly endangering another person,
menacing, and third-degree assault, defendant was sen-
tenced to probation with various conditions. He soon violated
his probation, and a joint hearing was held on that violation
and the state’s request for restitution. Defendant was ordered
to pay restitution to Washington County for the costs the
county incurred in repairing the damaged guardrail, and
additional conditions of probation were imposed. Defendant
appeals from the supplemental judgment, assigning error
to the trial court’s imposition of (1) $6,145.32 in restitution
for the county’s labor costs associated with repairing the
guardrail and (2) probation conditions not announced on the
record.
The state appropriately concedes the second assign-
ment of error, and we accept that concession. See State v.
Bonner, 307 Or 598, 600, 771 P2d 272 (1989) (“Judgment
in a criminal case must be pronounced in open court.”);
State v. Keen, 304 Or App 89, 90, 466 P3d 95 (2020) (“[T]he
[probation] condition was not properly imposed because it
was not announced in open court.”). The error regarding
the probation conditions entitles defendant to resentencing,
and we remand for that purpose. See State v. Anotta, 302
Or App 176, 178, 460 P3d 543, rev den, 366 Or 552 (2020)
(concluding that the appropriate remedy when a trial court
improperly imposes conditions of probation in a judgment
that were not announced at sentencing is to remand for
resentencing). For the reasons that follow, we affirm on the
first assignment.
We review the trial court’s imposition of restitution
for legal error. State v. Lobue, 304 Or App 13, 16, 466 P3d 83,
rev den, 367 Or 257 (2020). We are bound by the trial court’s
findings, including reasonable inferences, when supported
by any evidence in the record, id., and we review the evi-
dence in the light most favorable to the state. State v. Smith,
291 Or App 785, 788, 420 P3d 644 (2018).
Cite as 330 Or App 443 (2024) 445
ORS 137.106 (2021)1 requires a trial court to order
restitution “[w]hen, a person is convicted of a crime * * *
that has resulted in economic damages[.]” There are three
prerequisites for the imposition of restitution as part of a
defendant’s criminal sentence: “(1) criminal activities,
(2) economic damages, and (3) a causal relationship between”
the criminal activity and the economic damages. State v.
Kirkland, 268 Or App 420, 424, 342 P3d 163 (2015) (internal
brackets omitted). The state bears the burden of proving the
factual prerequisites necessary to support an award of res-
titution. ORS 137.106(1)(a); State v. Aguirre-Rodriguez, 367
Or 614, 620, 482 P3d 62 (2021).
Restitution is imposed as a criminal sanction and
“must be understood as an aspect of criminal law,” State v.
Dillon, 292 Or 172, 180, 637 P2d 602 (1981), and yet restitu-
tion is also “informed by principles enunciated in civil cases
concerning recoverable economic damages.” State v. Islam,
359 Or 796, 800, 377 P3d 533 (2016). We have emphasized
the penal purposes of restitution in some of our opinions
and the compensatory purposes in others. See, e.g., State v.
Tejeda-Serrano, 328 Or App 656, 658, 538 P3d 1239 (2023)
(noting that a key purpose of criminal restitution is to make
a victim whole); State v. Boyar, 328 Or App 678, 679, 538 P3d
1225, rev den, 371 Or 771 (2023) (explaining that restitution
is intended to be penal, not compensatory).
In fact, restitution awards mandated by ORS
137.106 serve both criminal and civil purposes. The statute
is itself a criminal statute that mandates restitution under
certain circumstances as part of a criminal sentence. As the
Supreme Court explained, that statute contains a “cross-
reference to the definition of ‘economic damages’ applicable
in civil actions.” State v. Ramos, 358 Or 581, 594, 368 P3d
446 (2016). That reference, along with “the legislature’s pur-
pose in creating the restitution procedure as a substitute
for a civil proceeding, make[s] civil law concepts relevant
to our interpretation of ORS 137.106.” Id. The overlapping
criminal and civil purposes were again noted by the court
in Islam when it explained that “[t]he purpose of damages
1
ORS 137.106 was amended in 2022. Or Laws 2022, ch 57, § 1. Those amend-
ments are now in effect, but they are not relevant to this case. We refer to ORS
137.106 as it existed in 2021.
446 State v. Carachuri
and criminal restitution is to make a victim whole[.]” Islam,
359 Or at 802. Criminal restitution may be awarded for
economic damages only and, therefore, cannot be viewed as
a complete substitute for civil recovery proceedings in all
instances. The criminal restitution statutes do not prohibit
a party injured by a defendant’s criminal conduct from fil-
ing a civil action against the defendant to recover damages.
ORS 137.109. It is, thus, a combination of damages recover-
able through civil proceedings and through criminal resti-
tution that may potentially make the victim whole.
ORS 137.103(2) defines “economic damages” by
incorporating most of the definition given to that term by
ORS 31.705(2)(a) for civil matters. As explained in State
v. Herfurth, 283 Or App 149, 153-54, 388 P3d 1104 (2016),
rev den, 361 Or 350 (2017), they are “objectively verifiable
monetary losses” recoverable “against the defendant in a
civil action arising out of the defendant’s criminal activi-
ties.” Restitution is to be imposed when “a reasonable person
in the defendant’s position would have foreseen that some-
one in the victim’s position could reasonably incur damages
of the same general kind that the victim incurred,” and
such losses resulted from the defendant’s criminal conduct.
Ramos, 358 Or at 597.
Defendant does not dispute the amount of restitution
imposed for the cost of materials and equipment needed to
repair the guardrail; he objects only to Washington County’s
labor costs. He argues that the required causal link between
his criminal conduct and the county’s labor costs is miss-
ing because there was no evidence that the county would
not have incurred those costs absent defendant’s criminal
conduct. He argues, in other words, that the county did not
establish that a recoverable economic loss occurred when it
paid its employees to repair the guardrail because it would
have paid them the same wages for their work even if the
guardrail had not been damaged.
Defendant relies on State v. Wilson, 193 Or App
506, 92 P3d 729 (2004), where we reversed a restitution
award imposed for the labor expenses of the Department
of Corrections’ (DOC) Fugitive Apprehension Unit in appre-
hending the defendant after he escaped from custody while
Cite as 330 Or App 443 (2024) 447
serving a prison sentence. Defendant reads Wilson too
broadly. We reasoned that the labor costs in Wilson could
not have been recovered under ORS 161.665(1) because they
would have been incurred “irrespective of specific viola-
tions of law,” making them “no more recoverable as restitu-
tion than they are recoverable as costs.” Id. at 510-11. The
labor costs, we concluded, “[were] not recoverable under any
theory of civil liability[.]” Id. at 511. We have applied that
holding only to cases involving similar costs associated with
criminal investigations or prosecutions. See, e.g., Herfurth,
283 Or App at 159 (concluding that a CARES interview, con-
ducted as part of a criminal investigation, did not give rise to
an award of restitution for associated costs); State v. Mann,
329 Or App 279, 540 P3d 582 (2023) (concluding the same
where a CARES assessment was described as a “proxy” for
a police interview). Wilson does not apply here because the
cost to repair the guardrail was not incurred irrespective
of specific violations of the law. The cost of repairing the
guardrail was incurred because of defendant’s criminal
activity and would be recoverable in a civil proceeding for
damages arising out of defendant’s criminal conduct.
Defendant also relies on State v. Heath, 75 Or App
425, 706 P2d 598 (1985), a case in which the defendants
pleaded no contest to charges of disorderly conduct arising
from their participation in a protest against certain logging
operations. We reversed the restitution award for the labor
costs associated with supervisor time spent “dealing with
the protest,” noting that the victim “would have had to pay
its supervisors the same average hourly rate whether they
had dealt with the protest or not.” Id. at 427-28. We reasoned
that the victim “experienced the inconvenience of not having
its supervisors available for other work while dealing with
the protest,” but that “the inconvenience d[id] not amount to
pecuniary damage.” Id. at 428. We reversed the restitution
award because it was imposed for the cost of labor used to
monitor the protest, and not the “actual expense incurred
as a result of defendants’ protest actions[.]” Id. This case is
different than Heath. The evidence here was that defendant
damaged the guardrail when he lost control of his car and
crashed. The damage to the guardrail was, thus, caused by
defendant’s criminal conduct and the damaged guardrail
448 State v. Carachuri
needed to be repaired. In Heath, the defendant’s actions did
not create work for the victim that did not exist before the
protest. The causal link that was missing in Heath is pres-
ent here.
This case is more like State v. Marquez, 139 Or App
379, 912 P2d 390, rev den, 323 Or 483 (1996), a case in which
we affirmed an award of restitution for the labor costs of sal-
aried employees who “had to work on the problems created
by defendant’s criminal activity.” Id. at 384. In that case,
the defendant had illegally accessed the Umatilla County
computer system and caused damage to it. That defendant
argued that, under State v. Heath, he could not be ordered
to pay restitution because the county would have incurred
its labor costs regardless of his criminal conduct. We dis-
agreed because the county’s loss “resulted from ‘correcting’
the problem caused by” the defendant. Marquez, 139 Or App
at 382. The county would not have dedicated its staff and
other resources to correct a problem that did not exist. As
we explained, “[b]ut for [the] defendant’s criminal activity,
those resources would not have been diverted to” fix the
problem. Id. at 384.
Defendant engaged in criminal conduct that caused
damage to the county’s guardrail, and the county incurred
costs to repair that damage. The trial court did not err in
including the cost of the labor that it took to repair the
guardrail in the economic damages imposed as restitution.
Remanded for resentencing; otherwise affirmed.