State v. Mann ( 2020 )

130
Argued and submitted July 16; reversed and remanded for resentencing,
otherwise affirmed August 19, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
BRIAN JOSEPH MANN,
Defendant-Appellant.
Marion County Circuit Court
17CR55426; A169465
471 P3d 826
Courtland Geyer, Judge.
Anne Fujita Munsey, 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.
Greg Rios, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Reversed and remanded for resentencing; otherwise
affirmed.
Cite as 306 Or App 130 (2020) 131
PER CURIAM
Defendant appeals a judgment of conviction for two
counts of attempted sexual abuse. He assigns error to the
trial court’s award of $4,400 in restitution to Willamette
Valley Community Health. He contends that the award
was legally erroneous under State v. Moreno-Hernandez,
365 Or 175, 442 P3d 1092 (2019), and State v. White, 299 Or
App 165, 449 P3d 924 (2019), in which we applied Moreno-
Hernandez to reverse and remand a restitution award under
circumstances not meaningfully distinguishable from those
present here. The state does not seriously dispute1 that the
award is erroneous under the reasoning in White but argues
that we should affirm on an alternative ground that was not
raised in White, thereby obviating the need for a remand.
Whether to consider a proffered alternative basis
for affirmance is a matter of discretion. State v. Fry, 303
Or App 587, 593, 464 P3d 521 (2020). We decline to exercise
that discretion here, mainly because we are not wholly con-
fident that the parties would not have generated a different
record if the state had raised its alternative theory before
now. As explained in White, on remand, the court may con-
sider whether there are “other permissible options,” includ-
ing the option proposed by the state, for awarding restitu-
tion to Willamette Valley Community Health. 299 Or App
at 169.
Reversed and remanded for resentencing; other-
wise affirmed.
1
The state raises a preservation argument, but that argument is nearly
identical to the one we rejected in White itself, and we reject it for the same rea-
sons here. See White, 299 Or App at 168 n 1.