State v. Harju , 321 Or. App. 530 ( 2022 )

530
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted June 24; imposition of fine reversed, otherwise affirmed
August 31, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
RYAN JOSEPH HARJU,
Defendant-Appellant.
Washington County Circuit Court
19CR05302; A175359
Eric Butterfield, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie J. Hortsch, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
JOYCE, J.
Imposition of fine reversed; otherwise affirmed.
Nonprecedential Memo Op: 321 Or App 530 (2022) 531
JOYCE, J.
Defendant appeals from a judgment of conviction for
first-degree forgery. Defendant was convicted of that charge
after first entering a preconviction conditional-discharge
diversion, see ORS 475.245, and then violating the terms
of that diversion. On appeal, he assigns error to the trial
court’s imposition of a $200 fine and a 30-month sentence
under ORS 137.717, the repeat property offender (RPO) stat-
ute. We agree with defendant (and the state) that the trial
court erred in imposing the $200 fine. We further conclude
that the court did not err in its imposition of the 30-month
sentence. Accordingly, we reverse the imposition of the fine
and otherwise affirm.
The relevant facts are few. In 2019, defendant
agreed to plead guilty to first-degree forgery and entered
into the conditional-discharge diversion under ORS 475.245.
ORS 475.245 allows courts to “defer further proceedings and
place the person on probation” if a person is charged with
particular offenses. Thereafter, the trial court issued an
“order entering drug court,” which expressly provided that
it was not a judgment of conviction. The trial court placed
defendant on five years of probation with certain conditions.
See ORS 475.245(1) (requiring the terms of probation to be
defined by a probation agreement). The trial court also ini-
tially imposed a $200 fine, but the prosecutor told the court
that the parties had agreed to waive the fine. Thus, the trial
court’s order did not include that fine.
In 2020, defendant admitted that he violated the
terms of his probation by absconding. At the hearing on
defendant’s violation, the trial court revoked defendant’s
probation and entered a judgment of conviction for forgery.
Further, the court imposed the presumptive 30-month prison
sentence under the RPO statute, to which defendant did not
object. In its oral ruling, the trial court did not impose any
fine; however, the judgment included a $200 fine.
On appeal, defendant argues that the trial court
erred in imposing that fine because the trial court did
not first orally impose it. The state concedes the error. We
accept the concession. See State v. Hillman, 293 Or App 231,
233, 426 P3d 249 (2018) (trial court erred in imposing $25
532 State v. Harju
probation-violation fee not announced in open court). Given
that the sentencing court had previously expressly waived
the fine, the state also urges us to reverse the part of the
judgment that contains the fine. We agree with and accept
that proposed disposition. State v. Hurst, 282 Or App 915,
916, 385 P3d 1285 (2016) (reversing part of judgment con-
taining unlawfully imposed fee).
In his second assignment of error, defendant argues
that the trial court committed plain error in entering a
30-month prison sentence. Defendant does not dispute that
his forgery conviction was subject to the 30-month presump-
tive sentence under the RPO statute, ORS 137.717. He also
does not dispute that, had he not agreed to the conditional-
discharge diversion, he would have been subject to that pre-
sumptive sentence. Instead, he relies on ORS 137.545(5)(b),
which provides that “the court that imposed the probation-
ary sentence may revoke probation supervision and impose
a sanction as provided by rules of the Oregon Criminal
Justice Commission.” Under those rules, for an offender
“whose presumptive sentence was probation, the sentence
upon revocation” shall not exceed six months. OAR 213-010-
0002(1). Because we conclude that any error is not plain, we
affirm.
Defendant analogizes the circumstances of this
case to those in State v. Denson, 280 Or App 225, 380 P3d
1170 (2016). We disagree that, at least in the plain error con-
text, Denson is analogous. In Denson, we concluded that the
terms of the judgment limited the sanction that the court
could impose after the defendant violated his probation.
Id. at 235. In that case, the defendant pleaded guilty to
crimes that qualified for an RPO sentence. Id. at 227. Rather
than imposing a sentence under the RPO statute, the sen-
tencing court imposed a downward dispositional departure
to probation. Id. The judgment of conviction listed only the
otherwise-applicable grid block classifications for his con-
victions; it did not explicitly state that the convictions were
eligible for a sentence under the RPO statute. Id. The defen-
dant then violated the terms of his probation, and the trial
court imposed a prison sentence under the RPO statute.
Id. at 228-29.
Nonprecedential Memo Op: 321 Or App 530 (2022) 533
The defendant appealed, arguing that OAR 213-
010-0002 did not allow the court to impose a prison term
because the original judgment of conviction did not reflect
that RPO sentences had ever applied. Id. at 231. We agreed.
Id. at 232. We began by noting that OAR 213-010-0002 pro-
vides that for an offender whose
“probationary sentence was * * * a departure from a pre-
sumptive prison sentence * * *, the sentence upon revoca-
tion shall be a prison term up to the maximum presump-
tive prison term which could have been imposed initially, if
the presumptive prison term exceeds 12 months. For those
presumptive prison terms [of] 12 months or less, the sen-
tence upon revocation shall be to the supervisory authority,
up to the maximum presumptive prison term.”
Id. at 231 (emphasis added). Applying that rule, we con-
cluded that the terms of the judgment of conviction limited
the sanction that was available for a probation violation,
even where—as in Denson—the parties did not dispute that
the defendant could have been subject to a harsher penalty
than the judgment ultimately reflected. Id. at 233.
In defendant’s view, because the initial disposition
in this case did not reference a sentence under the RPO stat-
ute, as in Denson, the trial court could not impose a prison
term. However, here, unlike in Denson, prior to violating the
terms of the conditional discharge, defendant had not been
convicted and the trial court had not entered a judgment
sentencing defendant. Rather, the trial court originally
entered an “order entering drug court” and imposed a condi-
tional five-year probationary disposition. In this conditional
discharge context, it is not plain that OAR 213-010-0002
applies. See ORS 137.545(5)(b) (the rule applies when a court
“imposed [a] probationary sentence”). Thus, we cannot say
that in the context of plain-error review, any error of law is
“obvious and not reasonably in dispute.” State v. Vanornum,
354 Or 614, 629, 317 P3d 889 (2013).
Imposition of fine reversed; otherwise affirmed.