State v. Moore ( 2020 )

649
Argued and submitted June 25; motion to strike denied, affirmed
November 25, 2020; petition for review denied April 8, 2021 (367 Or 827)
STATE OF OREGON,
Plaintiff-Respondent,
v.
DEVANTE XAVIER MOORE,
aka Devante Moore, aka Devante X. Moore,
Defendant-Appellant.
Multnomah County Circuit Court
18CR12381; A168802
478 P3d 587
Defendant appeals from a supplemental judgment that imposed $1,693.40 in
restitution, arguing that the trial court erred in finding “good cause” to impose
restitution beyond the 90-day deadline required by ORS 137.106. The district
attorney’s office contacted the sentencing court’s chambers three times to sched-
ule a hearing before the 90-day deadline; however, the court did not hold a resti-
tution hearing until 123 days after the judgment of conviction was entered. The
trial court found “good cause” for the delay and imposed restitution. On appeal,
defendant argues that there was not “good cause” for the delayed restitution
hearing because the delay was attributable to the inattentiveness of the state
and trial court. Defendant also moves to strike the state’s harmless error argu-
ment raised in a memorandum of additional authorities. Held: The trial court did
not err in finding good cause to extend the deadline for the prosecutor to make
a presentation on restitution. The trial court’s inattentiveness in scheduling a
hearing is not attributable to the prosecutor. Further, given that the resolution of
defendant’s arguments on the merits obviates the need to address any harmless
error argument raised in the memorandum of additional authorities, the motion
to strike is denied as moot.
Motion to strike denied; affirmed.
Christopher A. Ramras, Judge.
John P. Evans, 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.
Susan G. Howe, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
650 State v. Moore
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
POWERS, J.
Motion to strike denied; affirmed.
Cite as 307 Or App 649 (2020) 651
POWERS, J.
In this criminal appeal, defendant appeals from
a supplemental judgment that imposed $1,693.40 in resti-
tution, arguing that the trial court erred in finding “good
cause” to impose restitution beyond the 90-day deadline
required by statute. Specifically, defendant contends that
the state “failed to establish ‘good cause’ for the delayed res-
titution hearing because the delay was attributable to the
negligence or inattentiveness of the state and trial court.”
The state responds that a recent amendment to ORS 137.106
and our recent “good cause” decisions compel the conclusion
that a good-cause finding focuses on the actions of the pros-
ecutor, rather than the actions of the trial court. The state
further argues that the trial court’s inattentiveness consti-
tuted good cause to schedule a restitution hearing beyond
the 90-day deadline. For the reasons explained below, we
affirm.1
We review a trial court’s legal conclusions regard-
ing restitution for legal error. State v. Benz, 289 Or App 366,
368, 409 P3d 66 (2017). In so doing, we are bound by the
trial court’s findings if they are supported by any evidence
in the record. State v. Lobue, 304 Or App 13, 16, 466 P3d 83
(2020).
The facts are procedural and largely undisputed.
Defendant pleaded guilty to two counts of second-degree
criminal mischief and stipulated to liability for restitution.
The plea agreement noted that the specific amount of res-
titution would be determined within 90 days. At the plea
hearing, the prosecutor gave a “ballpark” estimate that
restitution would be $1,693, but that the district attorney’s
office was working on providing the exact amount to defense
1
Defendant also moves to strike the state’s memorandum of additional
authorities, which raises a harmless error argument for the first time on appeal.
See, e.g., State v. Gatto, 304 Or App 210, 215 n 3, 466 P3d 981 (2020) (refusing to
consider an argument not raised in the appellate briefing despite having been
preserved at trial). Although we have an independent obligation to address harm-
less error, State v. Sperou, 365 Or 121, 140, 442 P3d 581 (2019) (noting review-
ing court’s independent obligation under Article VII (Amended), section 3, of the
Oregon Constitution to determine whether the trial court error was harmless),
our resolution of defendant’s arguments on the merits obviates the need for us to
address any harmless error argument. Accordingly, we deny defendant’s motion
to strike as moot.
652 State v. Moore
counsel. The judgment of conviction was entered on April 9,
2018.
After two months had elapsed, the district attor-
ney’s office contacted the court to request a restitution
hearing. More specifically, the state requested a hearing by
sending the sentencing court’s chambers an email 74 days
and 80 days after entry of the judgment, and by leaving a
voicemail 86 days after the judgment.2 Ultimately, the court
held a restitution hearing on August 9, 2018, which was 123
days after the judgment of conviction was entered.
At the hearing, defendant objected to the imposition
of any restitution because the hearing occurred beyond the
90-day deadline as required by ORS 137.106(1)(a). That stat-
ute provides, in part:
“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 sen-
tencing or within 90 days after entry of the judgement, evi-
dence of the nature and amount of the damages. The court
may extend the time by which the presentation must be
made for good cause.”
The trial court found good cause to extend the deadline
beyond the 90-day deadline, explaining that,
“if there is negligence to be found, frankly, it’s on behalf of
the court. And when I say the court, I mean myself and my
chambers for not responding to these various emails and
voicemail messages. I don’t think that that really can be
attributable to the state.”
On appeal, defendant argues that the state failed
to establish good cause for the delayed restitution hearing
because the delay was attributable to the negligence or inat-
tentiveness of the state and trial court. Defendant cites State
v. Aguilar-Ramos, 284 Or App 749, 752, 395 P3d 35 (2017),
for the proposition that “ ‘inattentiveness to the passage of
time on the part of the trial court and prosecutor do not con-
stitute good cause.’ ” (Quoting State v. Martinez, 246 Or App
383, 387, 265 P3d 92, rev den, 351 Or 507 (2011), and State
2
There is no explanation in the record as to why the state did not first
request a hearing until 74 days after the judgment of conviction.
Cite as 307 Or App 649 (2020) 653
v. Arwood, 46 Or App 653, 657, 612 P2d 763 (1980) (brackets
from Martinez omitted)). Therefore, we understand defen-
dant to present two arguments: that the trial court’s negli-
gence is attributable to the state and, alternatively, that the
trial court’s negligence is not good cause to delay a restitu-
tion hearing. Neither argument, however, provides a basis
for reversal.
In 2013, the legislature amended ORS 137.106. Or
Laws 2013, ch 388, § 1. Before the amendment, the statute
“included two distinct timing requirements for restitution[.]”
State v. Taylor, 300 Or App 626, 627, 455 P3d 609 (2019),
rev den, 366 Or 493 (2020). The first requirement focused on
the district attorney’s obligation to investigate and present
the nature of the economic damages before sentencing. Id.The second requirement focused on the court’s obligation to
determine the amount of restitution and enter a supplemen-
tal judgment within 90 days of the original judgment. Id. at
628.
As we recently explained in Taylor, the 2013
amendment “significantly modified the first timing require-
ment and entirely removed the second timing requirement
from the statute.” Id. at 629; see also id. at 628 (noting that
the purpose of the amendment was “to extend the time by
which the district attorney had to present evidence of the
nature and amount of damages”). Now, ORS 137.106 “does
not require the court to determine the amount of restitution
or enter a restitution judgment within any specific time.” Id.
Rather, the time requirement in ORS 137.106 now focuses
on the district attorney’s obligation to investigate and pres-
ent evidence of restitution “ ‘at the time of sentencing or
within 90 days after entry of the judgment.’ ” Id. at 629-30
(quoting ORS 137.106(1)(a)). Importantly, ORS 137.106(1)(a)
allows the time for the prosecutor’s presentation of restitu-
tion information to be extended for “good cause.”3
3
We understand defendant’s arguments to be premised on the idea that the
state must make its presentation at a restitution hearing, not through another
avenue. We express no opinion on whether the state may offer its restitution pre-
sentation without a hearing. See Taylor, 300 Or App at 633 n 1 (noting 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 for be good cause
to extend the time by which the presentation may be made” and that we did “not
consider that possibility”).
654 State v. Moore
We further noted that, under the current version
of ORS 137.106(1)(a), the correct inquiry in evaluating good
cause is “whether there was a good reason for the district
attorney’s delay in presenting the evidence. That inquiry
will focus on the district attorney’s actions, or inaction,
rather than other causes of delay.” Id. at 635. Therefore,
“[b]ecause 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 caused the district attorney’s delay in presenting evi-
dence.” Id. Thus, to the extent that defendant’s arguments
rely on the trial court’s action (or inaction) to be attribut-
able to the prosecutor in failing to fulfill its duty under ORS
137.106(1)(a), we reject the underlying premise of the argu-
ment because the legislature removed the focus on the trial
court’s actions.
Resolving that issue, however, does not resolve the
entire case. We must still address whether the trial court
erred in concluding that there was good cause under ORS
137.106(1)(a) for the restitution hearing beyond the 90-day
deadline.
Although defendant is correct that “good cause”
does not include prosecutorial inadvertence, neglect, or
inattentiveness, Taylor, 300 Or App at 634-35, there may
be good cause where circumstances out of the prosecutor’s
control prevent a hearing from taking place. See, e.g., State
v. Condon, 246 Or App 403, 407-08, 264 P3d 1288 (2011),
rev den, 351 Or 649 (2012) (concluding that there was good
cause for the delay where much of the delay resulted from
the victim’s mother gathering “supporting documenta-
tion” concerning restitution); Martinez, 246 Or App at 388(concluding that good cause existed where the delay “was
because the prosecutor was awaiting information from the
victim’s compensation program” and “the need to secure
new counsel for defendant and to arrange for his presence
at the hearing”); State v. Landreth, 246 Or App 376, 382,
265 P3d 89 (2011) (concluding that good cause existed where
the victim was sick and unable to cooperate with the restitu-
tion investigation); see Taylor, 300 Or App at 634 (explaining
that, although not binding, earlier cases addressing good
cause under ORS 137.106(1)(b) (2011) “may provide helpful
Cite as 307 Or App 649 (2020) 655
guidance”). Indeed, as we explained in Taylor, “in the past,
the question was whether there was a good reason for delay
in the trial 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 evi-
dence.” 300 Or App at 635. Here, we have little difficulty
concluding that, despite being asked three times to sched-
ule a restitution hearing, the trial court’s act of scheduling
the hearing outside of the 90-day deadline was one of those
circumstances outside of the prosecutor’s control and, there-
fore, there was good cause to extend the time by which the
presentation could be made.
Accordingly, because the trial court’s inattentive-
ness in scheduling a hearing is not attributable to the pros-
ecutor and because the trial court’s failure to schedule
a hearing within in the 90-day deadline constitutes good
cause, the trial court did not err in finding good cause to
extend the deadline for the prosecutor to make a presenta-
tion on restitution.
Motion to strike denied; affirmed.