State v. Taylor , 300 Or. App. 626 ( 2019 )

626
On appellant’s petition for reconsideration filed July 17, reconsideration allowed,
former opinion (297 Or App 398, 442 P3d 222) modified and adhered to as
modified November 20, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSEF GRANT TAYLOR,
Defendant-Appellant.
Crook County Circuit Court
15CR40469; A164113
455 P3d 609
In its original opinion, State v. Taylor, 297 Or App 398, 442 P3d 222 (2019),
the Court of Appeals (1) rejected defendant’s argument that ORS 137.106(1)(a)
requires a trial court to determine the amount of restitution owed and enter a
supplemental judgment of restitution within 90 days of the general judgment
absent a finding of good cause for the delay, and (2) declined to address whether
the district attorney’s presentation of evidence regarding the nature and amount
of damages was timely. Defendant petitions for reconsideration, contending that
the decision conflicted with the court’s previous decision in State v. Aguilar-
Ramos, 284 Or App 749, 395 P3d 65 (2017), which held, under the same stat-
ute, that the prosecutor’s presentation of evidence was not timely. On the merits,
defendant argues that the trial court’s imposition of restitution more than 90
days after entry of the general judgment violated ORS 137.106(1)(a) because the
delay was not justified by good cause. Held: On reconsideration, the court adhered
to its first conclusion but addressed the merits of the second issue in light of the
reasoning in Aguilar-Ramos. As to the second issue, the trial court did not err in
finding good cause for the district attorney’s presentation of evidence more than
90 days after the entry of judgment.
Reconsideration allowed; former opinion modified and adhered to as modified.
Gary Lee Williams, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kristin A. Carveth, Deputy Public Defender,
Office of Public Defense Services, for petition.
Before Ortega, Presiding Judge, and Powers, Judge, and
Garrett, Judge pro tempore.
GARRETT, J. pro tempore.
Reconsideration allowed; former opinion modified and
adhered to as modified.
Cite as 300 Or App 626 (2019) 627
GARRETT, J. pro tempore
Defendant petitions for reconsideration of our deci-
sion in State v. Taylor, 297 Or App 398, 442 P3d 222 (2019).
In that decision, we (1) rejected defendant’s argument that
ORS 137.106(1)(a) requires a trial court to determine the
amount of restitution and enter a supplemental judgment of
restitution within 90 days of the general judgment absent a
finding of good cause for the delay, 297 Or App at 401, and
(2) declined to address whether the district attorney’s pre-
sentation of “evidence of the nature and amount of the dam-
ages,” ORS 137.106(1)(a), was timely, 297 Or App at 400 n 2.
Defendant contends that our decision conflicts with our pre-
vious decision in State v. Aguilar-Ramos, 284 Or App 749,
395 P3d 65 (2017), in which we held, under the same pro-
vision, that a prosecutor’s presentation of evidence was not
timely. On reconsideration, we adhere to our first conclusion
but agree with defendant that, in light of our reasoning in
Aguilar-Ramos, we should address the merits of the second
issue. Thus, we allow reconsideration, modify our previous
opinion, and adhere to it as modified.
We begin with ORS 137.106 and its history. Until
2013, ORS 137.106 included two distinct timing require-
ments for restitution: First, it required that, “[w]hen a per-
son is convicted of a crime * * * that has resulted in economic
damages, the district attorney shall investigate and present
to the court, prior to the time of sentencing, evidence of the
nature and amount of the damages.” ORS 137.106(1) (2011).
Second, if the court found from the evidence presented that
a victim had suffered economic damages, ORS 137.106(1)
required the general judgment to include one of several res-
titution provisions. One of the options was as follows:
“A requirement that the defendant pay the victim res-
titution, and that the specific amount of restitution will
be established by a supplemental judgment based upon a
determination made by the court within 90 days of entry of
the judgment. * * * The court may extend the time within
which the determination and supplemental judgment may
be completed for good cause.”
ORS 137.106(1)(b) (2011).
628 State v. Taylor
As is clear from that text, those two requirements
applied to different entities. The first applied to the district
attorney, who had to “investigate and present to the court
* * * evidence of the nature and amount of the damages”
early in the process—before sentencing. ORS 137.106(1)
(2011). The second applied to the court itself, which had to
determine the amount of restitution and enter the restitu-
tion judgment within 90 days of entry of the judgment of
conviction. ORS 137.106(1)(b) (2011).
Under that statute, we reversed restitution judg-
ments when courts failed to comply with the second require-
ment by failing to determine the amount of restitution
within 90 days of entry of the judgment in the absence of
good cause for the delay. State v. Biscotti, 219 Or App 296,
304, 182 P3d 269 (2008); see also, e.g., State v. Murrell, 242
Or App 178, 184, 255 P3d 574 (2011). We noted that there
was “nothing ‘hortatory’ about [the second requirement]. It
plainly establishes a 90-day deadline for the issuance of a
supplemental judgment ordering restitution.” Biscotti, 219
Or App at 300-01.
In State v. McLaughlin, 243 Or App 214, 219, 258
P3d 1241, disposition modified on recons, 244 Or App 691,
260 P3d 814, opinion withdrawn and original disposition
adh’d to on recons, 247 Or App 334, 269 P3d 104 (2011),
rev dismissed, 354 Or 491 (2013), we addressed a challenge
regarding the first timing requirement. There, the defendant
was convicted of theft, and the state presented evidence at
trial of the nature of the stolen item and its replacement
cost. However, the item had been recovered, and the state’s
evidence at trial did not include the cost of repairing and
reinstalling it, which was the amount requested as restitu-
tion. Id. at 220. We held that the state had failed to present
“evidence of the * * * amount of the damages” at the rele-
vant time, that is, before sentencing. ORS 137.106(1) (2011);
McLaughlin, 243 Or App at 221. Accordingly, we vacated the
restitution judgment. Id.In response to our decision in McLaughlin, the
legislature amended ORS 137.106 to extend the time by
which the district attorney had to present evidence of the
nature and amount of the damages. Or Laws 2013, ch 388,
Cite as 300 Or App 626 (2019) 629
§ 1; Exhibit 2, House Committee on Judiciary, HB 3277,
Apr 4, 2013 (statement of Department of Justice Legislative
Director Aaron Knott). The amendment significantly mod-
ified the first timing requirement and entirely removed
the second timing requirement from the statute. In light of
those changes, ORS 137.106(1)(a) now provides, as relevant
here:
“When a person is convicted of a crime * * * that has
resulted in economic damages, the district attorney shall
investigate and present to the court, at the time of sentenc-
ing or within 90 days after entry of the judgment, evidence
of the nature and amount of the damages. The court may
extend the time by which the presentation must be made
for good cause.”
Notably, the text of ORS 137.106 now does not
require the court to determine the amount of restitution or
enter a restitution judgment within any specific time. That
is, the timing requirement that we interpreted in Biscotti
and its progeny is no longer in the statute. Compare ORS
137.106 (providing no time limitation for the court to deter-
mine restitution or enter a judgment of restitution), with
ORS 137.106(1)(b) (2011) (“[T]he specific amount of restitu-
tion will be established by a supplemental judgment based
upon a determination made by the court within 90 days of
entry of the judgment. * * * The court may extend the time
within which the determination and supplemental judgment
may be completed for good cause.”), and Biscotti, 219 Or App
at 300-01 (noting that the text of ORS 137.106 as it existed
before the 2013 amendments “plainly establishes a 90-day
deadline for the issuance of a supplemental judgment order-
ing restitution”).
The current version of ORS 137.106 does still
require the district attorney to “investigate and present
to the court * * * evidence of the nature and amount of the
damages.” ORS 137.106(1)(a). However, the district attorney
now has longer to complete that task; rather than inves-
tigating and presenting the evidence “prior to the time of
sentencing,” ORS 137.106(1) (2011), the district attorney
must investigate and present the evidence “at the time of
sentencing or within 90 days after entry of the judgment.”
630 State v. Taylor
ORS 137.106(1)(a). The time for the district attorney’s “pre-
sentation” may be extended “for good cause.” Id.With that background in mind, we turn to the
history of this case. After entering a plea of no contest to
several charges, defendant was sentenced on February 24,
2016, and the judgment was entered on that date. Before
the sentencing hearing, the state had filed a motion for
restitution pursuant to ORS 137.106. At sentencing, defen-
dant’s attorney asked the court to set a separate restitution
hearing because he needed “some time to digest it further.”
The restitution hearing was scheduled for May 26, 2016.
On that day, however, the sentencing judge, citing “docket
pressures”—specifically, a “higher priority” juvenile depen-
dency case scheduled for the same day—rescheduled the
restitution hearing for June 6.
On June 6, the sentencing judge was presiding over
a trial, so defendant’s restitution hearing was set before a
different judge. After the court informed him of his right
to have the matter heard by the original sentencing judge,
defendant consented to proceeding and began making an
opening statement. Shortly thereafter, the court interjected
that the matter should be heard before the original sentenc-
ing judge, considering the complexity of the case and other
factors. The hearing was rescheduled for July 14, 2016,
before the sentencing judge.
At the July 14 hearing, defendant was expected to
appear by video from prison. He was unavailable, however,
because, unbeknownst to counsel for both parties and the
court, defendant had been transferred to another correc-
tional facility for a medical procedure. Noting the parties’
representation that they had reached a “tentative agree-
ment” on the amount of restitution, the court encouraged
them to continue their negotiations and did not set a new
hearing date.
The parties continued to negotiate through early
October 2016. During that period, the negotiations were
at times slowed due to communication difficulties between
defendant, who remained incarcerated, and his attorney. On
October 20, defendant informed the state that he disagreed
with the state’s proposed restitution calculations and that a
Cite as 300 Or App 626 (2019) 631
restitution hearing was necessary. The state contacted the
court on October 24, 2016, to schedule a hearing for the next
available date, which was January 12, 2017.
At the January 12 hearing, defendant again moved
to dismiss the state’s request for restitution, but the court
found good cause for the delay and denied the motion. The
January 12 hearing took place 323 days after the entry of
the judgment. The court entered a supplemental judgment
ordering defendant to pay restitution on January 20, 2017—
331 days after the entry of judgment.
On appeal, defendant assigned error to the court’s
finding of “ ‘good cause’ for permitting the state to obtain res-
titution 323 days after entry of the judgment.” Although he
cited the current version of ORS 137.106 and acknowledged
that the statute “provides the state with 90 days from the
entry of judgment to present the trial court with evidence
of the nature and amount of damages,” defendant argued
that the current version of ORS 137.106 “contains the same
deadline” that we interpreted in Biscotti and its progeny. He
asserted that the 2011 version of ORS 137.106(1) “does not
differ [from the current version of ORS 137.106(1)] in sig-
nificant respect with regards to the 90-day and good cause
provisions at issue in this case.”
We disagreed with that proposition, holding that
“ORS 137.106(1)(a) requires only that the state present cer-
tain evidence to the court within 90 days; it imposes no time
limit for the court to act on that evidence.” Taylor, 297 Or App
at 401. Because defendant had not sufficiently articulated
any argument based on the current text of ORS 137.106—
that is, he had not addressed the fact that the legislature
has removed the provision we interpreted in Biscotti and
had not explained the operation of the remaining text of the
statute—we declined to address any other argument. Id. at
400 n 2. Thus, we affirmed the supplemental judgment of
restitution. Id. at 401.
In his petition for reconsideration, defendant first
reiterates his argument that the statutory changes are
immaterial to this case; in his view, despite the absence
from the text of any requirement for the court to act within
a particular time period, “the prosecutor’s duty to present
632 State v. Taylor
evidence of damages, and the trial court’s duty to hold a
hearing and impose a supplemental restitution judgment,
are coextensive.” For the same reason stated in our original
opinion, we disagree. As explained above, the text of ORS
137.106 now does not require the court to determine the
amount of restitution or enter a restitution judgment within
any specific time; the timing requirement that we applied in
Biscotti no longer exists.
Defendant’s second argument on reconsideration is
that our rejection of his claims on appeal conflicts with our
holding in Aguilar-Ramos. In that case, we applied the cur-
rent version of ORS 137.106. See Aguilar-Ramos, 284 Or App
at 750 (the defendant was sentenced in November 2013); Or
Laws 2013, ch 388, §§ 2, 3 (the amended version of ORS
137.106 applies to sentencing hearings occurring on or after
June 13, 2013). There, the state had presented evidence at
a restitution hearing 203 days after the entry of the gen-
eral judgment. Aguilar-Ramos, 284 Or App at 751. We held
that the cause of the delay—prosecutorial inaction and inat-
tention—did not constitute good cause, and we reversed the
supplemental judgment of restitution. Id. at 753.
The defendant’s briefing in Aguilar-Ramos was very
similar to defendant’s briefing in this case. Moreover, like
defendant in this case, the defendant in Aguilar-Ramos
asserted that the change in the statutory text—the removal
of the second timing requirement—was immaterial. In
Aguilar-Ramos, we did not expressly address that assump-
tion; we did not explain the operation of the new statutory
text. However, as explained above, we concluded that, in the
absence of good cause for the delay beyond 90 days, we were
required to reverse the restitution judgment.
Because of the procedural similarity between this
case and Aguilar-Ramos, the similarity of the defendants’
briefing in the two cases, and the potential for confusion
resulting from the two opinions, we conclude that we should
address the merits of the issue that we declined to address
in our initial opinion. Thus, we allow reconsideration and
modify our previous opinion. We write to explain the oper-
ation of the new statutory text, which, as noted above,
we applied but did not explain in Aguilar-Ramos. After
Cite as 300 Or App 626 (2019) 633
defendant petitioned for reconsideration, we requested, and
the parties provided, additional briefing on that issue.
Thus, we proceed to consider the operation of the
timing requirement in the current version of ORS 137.106(1).
At the outset, we note that it is not clear to us that the res-
titution hearing is the only point at which the district attor-
ney could “present” “evidence of the nature and amount
of the damages.” ORS 137.106(1)(a). However, in Aguilar-
Ramos, in the absence of any argument to the contrary, we
implicitly held that the restitution hearing was the “presen-
tation” that the statute refers to. Here, in the absence of any
argument about the meaning of “present” in ORS 137.106
(1)(a) or its proper application to the facts of this case, we
adhere to that holding. Thus, in this case, as the parties
assume, the district attorney did not present evidence of
the nature and amount of the damages until the restitution
hearing was held, 323 days after entry of the judgment of
conviction.
We have previously held that, when the state has
failed to “present” sufficient evidence before the statutory
deadline, absent good cause, the trial court errs in order-
ing the defendant to pay restitution. McLaughlin, 243 Or
App at 221; see also Aguilar-Ramos, 284 Or App at 753. The
hearing in this case occurred long after the presumptive
deadline of 90 days following entry of judgment. Thus, the
question whether the trial court erred turns on whether the
court correctly “extend[ed] the time by which the presenta-
tion must be made for good cause.” ORS 137.106(1)(a).
It bears emphasis that, given the new statutory text,
the relevant question for our “good cause” analysis is what
constitutes good cause for a delay of the district attorney’s
presentation of evidence of the nature and amount of the
damages. ORS 137.106(1)(a). That may be different from
what constitutes good cause for a delay of the trial court’s
determination of restitution and entry of a supplemental
judgment.1 ORS 137.106(1)(b) (2011); see also Biscotti, 219 Or
1We note that, if the restitution hearing is not the only point at which the
district attorney may “present” evidence, that may also affect what it means for
there to be good cause to extend the time by which the presentation may be made.
We do not consider that possibility here.
634 State v. Taylor
App at 299-300 (explaining that, when the facts are undis-
puted, we review a “good cause” determination for legal
error and that discerning the meaning of the “good cause”
provision in the previous version of ORS 137.106(1)(b) is an
exercise in statutory construction). Accordingly, although
our earlier cases addressing good cause under ORS 137.106
(1)(b) may provide helpful guidance, they do not bind us in
this different context.
Defendant argues that there was no good cause
for the delay in this case because the record is insufficient
regarding the various reasons for rescheduling, includ-
ing the “docket pressures” and the “higher priority” case.
Relying on statutory speedy trial cases, defendant also con-
tends that we should consider the delay resulting from his
medical procedure as a delay caused by the state, because
the Department of Corrections was involved in his unex-
pected transfer. And, again relying on statutory speedy trial
cases, he contends that, overall, the delay in this case is too
long for it to be justified by good cause.
Defendant’s reliance on cases regarding statutory
speedy trial rights is misplaced. The statutory speedy trial
statute required the “court” to order dismissal if the defen-
dant was “not brought to trial within a reasonable period
of time.” Former ORS 135.747, repealed by Or Laws 2013,
ch 431, § 1. Given that ORS 137.106 requires only “the dis-
trict attorney” to act within a certain time period, we do not
perceive, and defendant has not explained, why the same
principles would apply in this very different context.
We have held that, as used in the earlier version
of the statute, ORS 137.106(1)(b) (2011), “good cause” does
not “include prosecutorial inadvertence or neglect.” State v.
Martinez, 246 Or App 383, 387, 265 P3d 92, rev den, 351 Or
507 (2011) (internal quotation marks omitted). Thus, inat-
tentiveness to the passage of time on the part of the prosecu-
tor does not constitute good cause. Id.; see also Murrell, 242
Or App at 184 (delay resulting from “inadvertent mislaying
of the file” does not amount to good cause); Biscotti, 219 Or
App at 304 (delay resulting from “miscommunication” after
prosecutor left office, causing case to “[fall] through the
cracks,” did not constitute good cause).
Cite as 300 Or App 626 (2019) 635
That principle applies equally under the new ver-
sion of the statute, ORS 137.106(1)(a). Because the timing
requirement that formerly applied to the trial court has
been removed, the focus of the good cause inquiry under the
current version of the statute is on what has caused the dis-
trict attorney’s delay in presenting evidence. If the district
attorney has neglected the case or delayed the presentation
of evidence without good reason, there may be no good cause
for the delay. See Aguilar-Ramos, 284 Or App at 753 (no good
cause when the “actions, or inactions, of the prosecutor were
the catalyst that led to the delay”).
Under ORS 137.106(1)(b) (2011), we have also held
that “not every error or unfortunate circumstance that
causes delay * * * must result in a finding of no ‘good cause’
for delay.” State v. Condon, 246 Or App 403, 408, 264 P3d
1288 (2011), rev den, 351 Or 649 (2012) (citing State v. Unis,
246 Or App 397, 402, 264 P3d 1286 (2011), rev den, 351 Or
678 (2012) (good cause existed where much of the delay
was the result of the victim’s mother gathering “support-
ing documentation” regarding restitution). That principle
is grounded in the “legislature’s apparent intent to provide
crime victims with a timely remedy.” Unis, 246 Or App at
402.2
That second principle applies with even more force
in light of the new statutory text. As noted above, in the
past, the question was whether there was a good reason for
delay in the court’s actions. Under the current version of
ORS 137.106, however, the question is whether there was
a good reason for the district attorney’s delay in presenting
the evidence. That inquiry will focus on the district attor-
ney’s actions, or inaction, rather than other causes of delay.
Here, the trial court did not err in finding good
cause for the delayed presentation of evidence. We see no
indication of neglect or dilatory conduct on the part of the
2
In Unis, 246 Or App at 402, we found good cause for a delay where, among
other circumstances, the prosecutor requested, and the defendant did not oppose,
a continuance “while the parties attempted to reach an agreement as to the res-
titution amount.” Id. We explained that “the restitution issue was being actively
litigated by both parties” and the “vast majority of the delay * * * was either
requested by or consented to by defendant.” Id.636 State v. Taylor
prosecution at any point in the 323-day period. The pros-
ecutor submitted information in support of the restitution
request before the February 2016 sentencing hearing; it
was defendant who initially asked for additional time. The
May 26 and June 6 postponements were attributable to the
trial court’s scheduling complications, and the July 14 post-
ponement was caused by defendant’s transfer to another
DOC facility without apparent notice to the court, defen-
dant’s counsel, or the prosecutor. The court deferred another
hearing after July 14 based on the parties’ representation
that they had a “tentative agreement” and were negotiating
toward a final resolution. When negotiations finally failed
in October and defendant informed the prosecution that he
wanted a hearing, the prosecution acted on that request
within four days, and the hearing occurred on the next
available court date. Given the focus of ORS 137.106(1)(a) on
the district attorney’s actions, the district attorney’s appar-
ent diligence here answers defendant’s argument. Although
the ultimate delay of 331 days from the entry of judgment
until the entry of the supplemental judgment was unusually
long, the trial court did not err in finding good cause for
the district attorney’s presentation of evidence to take place
more than 90 days after the entry of judgment.
Reconsideration allowed; former opinion modified
and adhered to as modified.