State v. Frick ( 2020 )

391
Submitted December 10, 2019; portions of judgment imposing fines vacated,
remanded for resentencing, otherwise affirmed May 28, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
KENNETH MICHAEL FRICK,
Defendant-Appellant.
Washington County Circuit Court
18CR12071; A167797
467 P3d 77
Defendant appeals a judgment of conviction for driving under the influence
of intoxicants, reckless driving, and recklessly endangering another person. He
contends that the trial court erred in imposing certain fines and special proba-
tion conditions in the judgment that were not announced in open court and, with
respect to the probation conditions, that the record does not support their impo-
sition in any event. He further challenges terms in the judgment authorizing
the clerk of the court to schedule payments of his monetary obligations and the
addition of collection fees. Held: As the state properly conceded, the trial court
erred in imposing $455 in fines that were not announced in defendant’s presence
at sentencing. Because the case must be remanded for resentencing as a result,
any error with respect to the special probation conditions may be addressed on
remand. The judgment provisions authorizing the clerk of the court to schedule
payments and impose collection fees did not violate ORS 161.675 or ORS 1.202;
any contention that the clerk violated the law post-judgment must be directed to
the circuit court.
Portions of judgment imposing fines vacated; remanded for resentencing;
otherwise affirmed.
Theodore E. Sims, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Mooney, Judge.
DeHOOG, P. J.
Portions of judgment imposing fines vacated; remanded
for resentencing; otherwise affirmed.
392 State v. Frick
DeHOOG, P. J.
Defendant appeals a judgment of conviction for driv-
ing under the influence of intoxicants (DUII), ORS 813.010
(Count 1), reckless driving, ORS 811.140 (Count 2), and reck-
lessly endangering another person, ORS 163.195 (Count 3),
raising 12 assignments of error. In part, he contends that
the trial court erred in imposing certain fines and special
probation conditions in the judgment without first announc-
ing them in open court and, with respect to the probation
conditions, that the record does not support their imposition
in any event. He also argues that it was reversible error for
the court to include orders “authorizing or directing the clerk
to impose collection fees and schedule payments” where “the
record shows that the clerk unlawfully enforced defendant’s
monetary obligations and imposed a collection fee while he
was incarcerated.” The state concedes one narrow point: that
the trial court erred in imposing $455 in fines that were not
announced at sentencing. We agree with and accept that
concession. We also agree with the parties that the proper
remedy for that error is to vacate the portions of the judg-
ment imposing the fines and remand for resentencing. In
turn, that disposition—resentencing—obviates the need for
us to address defendant’s challenges to the special proba-
tion conditions, because any error regarding those assign-
ments can be addressed at resentencing. Finally, our recent
case law forecloses defendant’s arguments with respect to
the payment schedule and collection of fees. Consequently,
we vacate the portions of the judgment imposing the fines,
remand for resentencing, and otherwise affirm.
The pertinent facts are not in dispute. Defendant
was convicted, based on his guilty plea, of DUII, reckless
driving, and recklessly endangering another person after he
drove while he was intoxicated, got into a fist fight with his
brother (who was a passenger in the car), and drove the car
off the road. At the sentencing hearing, at which defendant
was present, the court announced that it was imposing, as
conditions of five years’ formal probation, 180 days’ jail time,
a $2,000 fine, attendance at a victim’s impact panel, alcohol
treatment, and contact with the victim, his brother, only as
allowed by his probation officer. The court later entered a
written judgment imposing a $2,255 fine on Count 1 and
Cite as 304 Or App 391 (2020) 393
a $100 fine on each of Counts 2 and 3. The judgment also
imposes several special probation conditions in addition to
those described above and pronounced in open court. With
respect to defendant’s financial obligations, the judgment
includes two provisions that are pertinent to this appeal.
First, the judgment states:
“The court may increase the total amount owed by add-
ing collection fees and other assessments. These fees and
assessments may be added without further notice to the
defendant and without further court order.”
Second, it provides:
“Payment of the fines, fees, assessments, and/or attorney’s
fees noted in this and any subsequent Money Award shall
be scheduled by the clerk of the court pursuant to ORS
161.675.”
On appeal, defendant first challenges the fines (or
portions thereof) that were imposed in the judgment, but
not pronounced in his presence at the sentencing hear-
ing. Specifically, in his first three assignments of error on
appeal, defendant contests the additional $255 on Count 1
and $100 each on Counts 2 and 3 that the court imposed in
the judgment but did not order at the hearing. As previously
noted, the state concedes that the court erred in that regard,
and we agree. See, e.g., State v. Dennis, 303 Or App 595, 596,
464 P3d 518 (2020) (stating that “[a] criminal defendant has
a right to be present at sentencing” and holding that a trial
court errs by imposing fines or fees in a written judgment
that it did not pronounce at sentencing); State v. Cumpston,
303 Or App 479, 480, 461 P3d 1042 (2020) (holding that trial
court erred in imposing fine greater than that announced
at sentencing hearing); State v. Toombs, 302 Or App 173,
174, 460 P3d 533 (2020) (same). Accordingly, we accept the
state’s concession. And, as the parties recognize, that error
requires us to vacate the portions of the judgment imposing
the fines and remand for resentencing. ORS 138.257(4)(a)(B);
see also Toombs, 302 Or App at 174 (so holding under similar
circumstances).
In his fourth through tenth assignments of error,
defendant challenges seven special conditions of probation
in the judgment, asserting two bases for reversal: first, that
394 State v. Frick
those conditions, like the fines discussed above, were not
pronounced in his presence at the sentencing hearing; and,
second, that the factual record does not support imposition
of the conditions under ORS 137.540(2) (special conditions
must be “reasonably related to the crime of conviction or the
needs of the probationer for the protection of the public or
reformation of the probationer, or both”). The state responds
that defendant’s challenge to the special conditions is moot
because the trial court has since imposed the same spe-
cial conditions in a new judgment, which defendant did not
appeal. See State v. Nguyen, 298 Or App 139, 140, 445 P3d
390 (2019).
However, given that defendant will be resen-
tenced on remand, we need not address the issue at all. See
Cumpston, 303 Or App at 480 (declining to address defen-
dant’s challenge to special conditions of probation where
erroneous imposition of fine required remand for resentenc-
ing because trial court could address any error with regard
to those conditions at that time). That is, although we rec-
ognized in Nguyen that, under the circumstances present
there, reversing the defendant’s conditions of probation
would have no practical effect, we did not foreclose the pos-
sibility that the court would exercise its discretion to modify
those conditions while the defendant remained on proba-
tion. Similarly, in this case, we leave it to the trial court to
decide whether defendant’s probation conditions should be
modified upon resentencing.
In his final two assignments of error, defendant
contends that the trial court “violated ORS 161.675 and
ORS 1.202 when it authorized the clerk to enforce defen-
dant’s monetary obligations and the clerk did so while defen-
dant was incarcerated.”1 (Boldface omitted.) As a result, in
defendant’s view, the judgment terms related to his mone-
tary obligations, 304 Or App at 393, must be reversed. We
disagree.
1
Defendant also asserts that his argument regarding the imposition of judg-
ment provisions outside his presence applies to these assignments of error as
well. However, he does not explain why those terms are sentencing provisions;
indeed, he makes no argument at all specific to that assertion. Accordingly, we do
not address it further.
Cite as 304 Or App 391 (2020) 395
ORS 161.675(1) provides:
“When a defendant, as part of a sentence or as a condi-
tion of probation or suspension of sentence, is required to
pay a sum of money for any purpose, the court may order
payment to be made immediately or within a specified
period of time or in specified installments. If a defendant is
sentenced to a term of imprisonment, any part of the sentence
that requires the payment of a sum of money for any purpose
is enforceable during the period of imprisonment if the court
expressly finds that the defendant has assets to pay all or
part of the amounts ordered.”
(Emphasis added.) ORS 1.202(1) requires the court to add
a fee to any judgment that includes a money obligation that
the court is charged with collecting and provides, in part,
that the fee
“shall be added without further notice to the debtor or fur-
ther order of the court. The fee shall be added only if the
court gives the defendant a period of time in which to pay
the obligation after the financial obligation is imposed.”
According to defendant, because the court did not find that
he had the assets to pay his monetary obligations, the court
erred under ORS 161.675 by including in the judgment an
order for the clerk to schedule payments. And, because the
court could not impose a payment schedule, the court was
also not authorized to impose collection fees under ORS
1.202(1).
Defendant’s arguments are foreclosed by our recent
case law. In State v. Foos, 295 Or App 116, 117, 433 P3d 493
(2018)—as in this case—the defendant challenged a provi-
sion in the judgment stating that “ ‘[p]ayment of the fines,
fees, assessments, and/or attorney’s fees noted in this and any
subsequent Money Award shall be scheduled by the clerk of
the court pursuant to ORS 161.675.’ ” (Brackets in Foos.) She
contended that the term was unlawful because she was sen-
tenced to a term of incarceration and the court did not find,
as required by ORS 161.675, that she had the assets to pay
her financial obligations. Id. at 118. We rejected that argu-
ment, assuming—in the absence of a record demonstrating
otherwise—that the clerk would follow the requirements of
the statute. Id. at 119. Similarly, in State v. Saunders, 298 Or
396 State v. Frick
App 291, 293, 447 P3d 60 (2019), we rejected a challenge to
a judgment term allowing for the addition of collection fees
“ ‘without further notice to the defendant and without fur-
ther court order’ ” applying essentially the same reasoning—
that, “on its own, the term does not require the clerk to add
a collection fee, nor does it direct the clerk to act contrary to
any law or statute.”
Defendant, however, argues that this case is dis-
tinguishable because, here, the case register includes an
entry, “Judgment - Payment Schedule Assessment Amount:
$200.00,” on a date when he was still in jail. Thus, in defen-
dant’s view, he is entitled to reversal of the challenged judg-
ment terms because, unlike in Foos (and Saunders), the fac-
tual record “shows that the clerk is unlawfully seeking to
enforce the monetary obligation and unlawfully imposing a
collection fee.” (Emphasis added.)
We recently rejected an essentially identical argu-
ment in State v. Ciraulo, 301 Or App 849, 459 P3d 960
(2020), decided after this case was submitted on appeal. In
Ciraulo, we made explicit what we had suggested in State
v. Lord, 301 Or App 653, 458 P3d 701 (2020)—that, “to the
extent that defendant has evidence that the clerk is violat-
ing the law post-judgment, an appropriate course may be
for defendant to challenge the clerk’s actions in the trial
court, through a writ of mandamus, or otherwise.” Ciraulo,
301 Or App at 850-51 (citing Lord, 301 Or App at 657 n 5;
ORS 1.025(3) (where a duty is imposed by law on a clerk or
judicial officer, that duty “may be enforced by writ of man-
damus”); ORS 161.675(3) (“[a] schedule of payments shall be
reviewed by the court upon motion of the defendant at any
time, so long as the obligation remains unsatisfied”)); accord
State v. Lobue, 304 Or App 13, 22 n 5, 466 P3d 83 (2020) (“If,
as defendant contends, the clerk has taken action inconsis-
tent with ORS 161.675, that is a matter to be taken up in
circuit court.”). We adhere to that conclusion here.
Portions of judgment imposing fines vacated; remanded
for resentencing; otherwise affirmed.