State v. Humphrey ( 2023 )

344 August 9, 2023 No. 400
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
HAYLEE ELIZABETH HUMPHREY,
Defendant-Appellant.
Deschutes County Circuit Court
19CR54265; A175765
Beth M. Bagley, Judge.
Argued and submitted July 6, 2023.
Erik Blumenthal, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Emily Snook, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
Affirmed.
Cite as 327 Or App 344 (2023) 345
AOYAGI, P. J.
Defendant pleaded guilty and was convicted of
second-degree criminal trespass, ORS 164.245, a Class C
misdemeanor. She was sentenced to 12 months of bench pro-
bation and notified that sentencing would be left open for
90 days for the state to seek restitution. Thereafter, the court
attempted to hold the restitution hearing many times, but
neither the court nor defense counsel could reach defendant
(despite repeated attempts), as she had apparently moved
and changed her phone numbers without notifying the court
or counsel. The court eventually decided to proceed with the
hearing and ordered defendant to pay $820.83 in restitution.
In her sole assignment of error on appeal, defendant con-
tends that the court violated her rights under the Sixth and
Fourteenth Amendments to the United States Constitution
by holding the restitution hearing without her personally
present. For the following reasons, we affirm.
As an initial matter, we agree with the state that
defendant’s claim of error is unpreserved. The restitution
hearing in this case was reset six times—twice for admin-
istrative reasons and four times due to defendant not being
present. The first time that defendant did not appear was
on July 30, 2020. When the court suggested that they might
be able to proceed, both the prosecutor and defense counsel
took the position that the facts were insufficient to establish
waiver under existing case law. The court pressed counsel
as to what legal authority they were relying on and, ulti-
mately, ordered written briefing for the express purpose of
identifying the relevant legal authority. In August 2020,
the state filed a written memorandum citing two Oregon
cases regarding a defendant’s right to be present at a resti-
tution hearing under ORS 136.040(1) and the standard for
waiver under ORS 136.040(1).1 Defense counsel filed a writ-
ten memorandum citing the same two cases regarding ORS
136.040(1).
1
ORS 136.040(1) provides that a trial on a misdemeanor charge “may be had
in the absence of the defendant if the defendant appears by counsel[.]” However,
under long-established case law, the court “must determine that the defendant
voluntarily waived the right to be present” to do so. State v. Turner, 99 Or App
176, 178, 781 P2d 404 (1989).
346 State v. Humphrey
The court attempted to hold restitution hearings
on August 24, 2020; October 27, 2020; and December 15,
2020. Each time, defendant did not appear, the prosecu-
tor and defense counsel agreed that the facts were insuf-
ficient to establish waiver for purposes of ORS 136.040(1),
and the court decided to reset the hearing. Each time, how-
ever, the state also raised the issue of the victim’s right to
prompt restitution under Article I, section 42, of the Oregon
Constitution, with increasing emphasis. The state first
raised that issue in a footnote in its August 2020 memo-
randum.2 At the hearing on August 24, 2020, the state sug-
gested that “at a certain point in time, our victim’s Article
1, section 42, right may trump or at least be equally viable
with the kind of statutory analysis of the defendant’s right
to be present.” At the hearing on October 27, 2020, the state
argued that Article I, section 42, provided “an alternative
mechanism by which the Court could theoretically choose to
go forward today.” At the hearing on December 15, 2020, the
state expressly asked the court to consider going forward
with the hearing and to “consider issuing a judgment under
Article I, Section 42, basically trumping the case law with
the victim’s constitutional right.” The court decided to reset
the hearing one more time but suggested that it might pro-
ceed the next time.
On March 16, 2021, defendant again did not appear.
The court announced that it intended to proceed, citing both
defendant’s failure to maintain contact with her attorney
or keep the court apprised of her current address and the
victim’s constitutional right to restitution. Defense counsel
noted his objection for the record, stating that it was set
forth in his August 2020 written memorandum. Before put-
ting on evidence, the state requested that the court limit
its ruling to proceeding based on the victim’s constitutional
2
In the footnote in its August 2020 memorandum, the state stated,
“As noted at the beginning of this Memo, however, one consideration for the
State in believing it could not/should not proceed is the fact that the 7/30
hearing was the first time an actual court hearing occurred on this restitu-
tion issue. Had this been, say, the fifth time a hearing had been set, the Court
had called the case, and defendant was not present, Counsel concedes that
alternative considerations may come into play, such as a victim’s Article I,
Section 42 right to ‘prompt’ restitution. The exact parameters of that balance
seems to be an open question * * *.”
Cite as 327 Or App 344 (2023) 347
right, because the state continued to believe that the facts
were insufficient to establish waiver for purposes of ORS
136.040(1), as set forth in its August 2020 memorandum.
The state asked the court not to proceed on “the ORS track,”
which the state did not believe was legally sound, and
instead “purely under the Article I, Section 42 track.” The
court agreed to do so. Defendant stated, “If I could, again,
just note my objection to proceeding on that track as well. I
don’t believe the—her right to appear would be trumped by
that provision.” The court then proceeded to hold the resti-
tution hearing. The state requested $2,100 in restitution.
After hearing the evidence and an argument from defense
counsel, the court ordered defendant to pay $820.83 in
restitution.
On appeal, defendant argues that proceeding
with the restitution hearing without her personally pres-
ent violated her rights under the Sixth and Fourteenth
Amendments to the United States Constitution. That is
her only argument, as she no longer makes any argument
under ORS 136.040(1). The state argues, and we agree, that
no claim of federal constitutional error was preserved. As
described, the only legal impediment to proceeding with the
restitution hearing that either party ever raised to the court
was defendant’s statutory right to be present under ORS
136.040(1). Defendant never invoked the Sixth Amendment
(or any part of the federal constitution), directly or through
common shorthand, or cited any case law or other authority
regarding the Sixth Amendment (or any part of the federal
constitution). There was ample opportunity to do so, includ-
ing in written briefing and during four hearings at which
the state invoked the victim’s right to prompt restitution
under Article I, section 42.3
There is a material difference between asserting a
state statutory right and asserting a federal constitutional
right, at least in this context, where the state was urging
3
At oral argument, defendant suggested that defense counsel preserved the
federal constitutional issue by stating at the hearing on March 16, 2021, “If I
could, again, just note my objection to proceeding on that track as well. I don’t
believe the—her right to appear would be trumped by that provision.” That state-
ment cannot plausibly be construed as raising a new federal constitutional issue,
and it is apparent that no one at the hearing so construed it.
348 State v. Humphrey
the sentencing court to proceed on the basis that the victim’s
state constitutional right to prompt restitution trumped the
defendant’s state statutory right to be present. When two
people have competing legal rights, and a court must decide
which right prevails and which must give way, the nature of
the right asserted by each person is critical to the analysis.
The purposes of preservation were not served here, because
the state never had an opportunity to respond to any fed-
eral constitutional issue, nor did the trial court ever con-
sider or rule on any federal constitutional issue. See Peeples
v. Lampert, 345 Or 209, 220, 191 P3d 637 (2008) (discussing
the purposes of the preservation rules, which are “pragmatic
as well as prudential,” and describing “procedural fairness
to the parties and to the trial court” as the ultimate “touch-
stone” for preservation).
Our review is therefore limited to plain error.
“Generally, an issue not preserved in the trial court will not
be considered on appeal.” State v. Wyatt, 331 Or 335, 341,
15 P3d 22 (2000). However, we have discretion to correct a
“plain” error. ORAP 5.45(1). An error is “plain” when it is an
error of law, the legal point is obvious and not reasonably
in dispute, and the error is apparent on the record without
our having to choose among competing inferences. State v.
Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). It is a mat-
ter of discretion whether we will correct a plain error. State
v. Gornick, 340 Or 160, 166, 130 P3d 780 (2006). Here, the
state contends that we should not even consider plain-error
review, because defendant did not request it until her reply
brief. We need not resolve that procedural dispute because,
in any event, the alleged error has not been established as
“plain,” or, even if it is plain, we would not exercise our dis-
cretion to correct it in these circumstances.
One of the requirements for plain-error review is
that the legal point be obvious and not reasonably in dis-
pute. Vanornum, 354 Or at 629. It is defendant who must
demonstrate that that requirement is met. Here, the author-
ity cited by defendant on appeal does not make it “obvious”
that, in these circumstances, the court could not proceed
without violating defendant’s federal constitutional rights.
Of particular note, defendant does not cite a single case in
Cite as 327 Or App 344 (2023) 349
a comparable posture or address federal case law regarding
waiver in this context.
Ultimately, however, even if we were to allow defen-
dant’s late request for plain-error review, and even if we
were to conclude that the trial court committed a plain error,
we would not exercise our discretion in these circumstances.
Defendant may not have been under court order to keep her
attorney and the court apprised of her contact information,
but she was on bench probation, and she was expressly noti-
fied at the sentencing hearing in November 2019 that sen-
tencing would be left open for 90 days for the state to seek
restitution. She nonetheless quickly became unreachable
and remained unreachable through March 2021. At that
point, the court proceeded with the restitution hearing, with
defense counsel present, and awarded a significantly lesser
amount of restitution ($820.83) than the state requested
($2,100). Under the circumstances, we are unpersuaded that
the error is so grave that it would merit the exercise of our
discretion to correct an unpreserved error.
Affirmed.