State v. Larson ( 2021 )

576
Argued and submitted February 9; amended judgment dated June 7, 2019,
reversed, remanded for entry of amended judgment signed on February 23,
2018, September 15, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
MARK WILLIAM LARSON II,
Defendant-Appellant.
Umatilla County Circuit Court
CR150908; A171570
497 P3d 1276
Defendant appeals from an amended judgment of conviction for driving
under the influence of intoxicants (DUII), ORS 813.010, that was entered after
resentencing. On defendant’s first appeal, we vacated the portion of his original
judgment imposing several fines and remanded for resentencing. State v. Larson,
289 Or App 60, 408 P3d 273 (2017). The trial court held a resentencing hearing
on February 23, 2018, at which time it imposed and suspended fines totaling
$1,855 and memorialized that in an amended judgment that was approved by the
parties and signed by the judge that same day. That judgment was not entered.
In June 2019, a different judge held a second “resentencing” hearing and imposed
the same fines, but did not suspend them. Defendant argued that the trial court
lacked authority to modify the conditions of his probation in June 2019 because he
had served his sentence, including his probation, in May 2018. The state argued
that defendant failed to preserve his lack of authority argument, and that his
argument also fails on the merits because the February 23, 2018, amended judg-
ment was never entered and, therefore, had no preclusive effect. Held: Defendant
properly preserved his lack of authority argument. Defendant had served his
sentence, including probation, by the time of the June 2019 hearing. The court,
therefore, lacked authority to modify the terms of his sentence.
Amended judgment dated June 7, 2019, reversed; remanded for entry of
amended judgment signed on February 23, 2018.
Daniel J. Hill, Judge.
Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Cite as 314 Or App 576 (2021) 577
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
MOONEY, J.
Amended judgment dated June 7, 2019, reversed; remanded
for entry of amended judgment signed on February 23, 2018.
578 State v. Larson
MOONEY, J.
This is defendant’s second appeal of this case. He
appeals from an amended judgment of conviction for driving
under the influence of intoxicants (DUII), ORS 813.010, that
was entered after resentencing. In the original judgment,
the trial court imposed the following sentence:
“Defendant is sentenced to the custody of the Local
Supervisory Authority for a period of 180 day(s); however,
the execution of 120 day(s) of this incarceration is hereby
suspended and defendant is sentenced to probation. If
defendant violates any of the following terms or condi-
tions of probation, the court may execute this suspended
sentence.”
The court imposed various conditions of probation typically
associated with DUII convictions, such as alcohol treat-
ment and including a $1,685 “fine,” a $100 “bench probation
assessment,” a $255 “state obligation,” and a $60 “manda-
tory state amt.” On his first appeal, we vacated that portion
of the judgment imposing the fine and other monetary obli-
gations and remanded the case to the trial court for resen-
tencing. State v. Larson, 289 Or App 60, 408 P3d 273 (2017)
(Larson I).
Defendant was resentenced after a hearing on
February 23, 2018, at which time the trial court imposed
and then suspended fines and fees totaling $1,855. That first
amended judgment was signed but not entered.1 A different
judge held a second resentencing hearing in June 2019 and
imposed, but did not suspend, fines and fees totaling $1,855.
A second “amended judgment” was thereafter signed and
entered and is the basis of this appeal. Defendant now
assigns error to the trial court’s imposition and execution of
the fines and fees, arguing that it lacked authority in June
2019 to modify those obligations because they became effec-
tive on February 23, 2018, as conditions of defendant’s pro-
bationary sentence, despite lack of entry of the judgment,
and, as such, were not modifiable. Defendant argues also
1
There was an earlier “amended judgment” that had been entered in error
and later vacated by order of the court. Because it was vacated, it is not relevant
here, and we do not include it in our discussion, nor do we include it in our num-
bering of the post-remand amended judgments.
Cite as 314 Or App 576 (2021) 579
that, in any event, his probation had expired by the time
the second amended judgment was entered, and the trial
court had no authority, at that point, to execute the sus-
pended financial obligations. The state contends that defen-
dant did not preserve his lack of authority argument and
that, even if he had, he is wrong on the merits. In particu-
lar, the state argues that “the court never had signed the
orders that actually would have accomplished” suspension
of the fine and fees and that the “prior tentative rulings” of
February 23, 2018, “had no preclusive effect on the sentenc-
ing court at the June 2019 resentencing.” And, finally, it
argues that the court was simply carrying out our remand
directive when it held the second resentencing hearing in
June 2019 and that, therefore, the fact that defendant’s pro-
bationary sentence had by then been served did not matter.
Understanding the procedural sequence of events is
critical to the proper resolution of this appeal. The follow-
ing chronology is drawn from the record. While defendant’s
first appeal was pending, and before we issued our opinion
in Larson I, defendant was arraigned on an order to show
cause regarding probation violations alleging noncompli-
ance with payment of fines and fees and with defendant’s
alcohol treatment obligations. The trial court provided
defendant with a new referral for treatment and scheduled
a follow-up hearing.
That follow-up hearing took place on January 8,
2018, after our decision in Larson I was published but before
the appellate judgment had been entered in the trial court’s
register. The trial court advised defendant and the state
that it had seen the decision and it explained, correctly,
that it could not act on it until it had received the appel-
late judgment. The court finished the status hearing and set
another review hearing, leaving the show cause order pend-
ing and effectively extending defendant’s probation, which
was otherwise set to expire on February 23, 2018. Once the
appellate judgment was received, a resentencing hearing
was set for February 23, 2018.
Judge Temple, who had presided over the trial and
original sentencing hearing, conducted the resentencing
hearing on February 23, 2018. She asked defendant, who
580 State v. Larson
appeared without counsel, about his financial and medical
circumstances so that she could consider his capacity to pay
fines and fees as she considered whether to impose any mon-
etary obligations. Defendant explained that he was unem-
ployed, had been unable to apply for disability, owed child
support, was on food stamps and the Oregon Health Plan,
lived with his family, and had been in an ATV accident that
caused significant injuries, including a head injury result-
ing in memory loss. He stated that he had been compliant
with his terms of probation but had not yet paid any fines or
fees.
The trial court explained:
“I’m going to amend your original sentence. You’ve com-
pleted essentially everything but the treatment, and you’re
enrolled and in good standing in the treatment right now.
So I’m not going to change any of the action parts of your
judgment. I’m only going to amend the monetary portions.”
It then waived all fees, and imposed a $1,500 fine, which
it suspended. The court prepared an amended judgment,
which imposed and suspended $1,855 in fines, which
included the $1,500 fine “imposed and suspended” by the
court and the DUII conviction fee of $255 that was “waived”
by the court, and the $100 bench probation fee that was also
“waived” by the court. The judgment was printed for the
parties to review, and the court answered questions about
the judgment that were asked of it by both defendant and
the prosecuting attorney. Once the discussion ended, the
judgment was approved by the prosecuting attorney, the
judge signed the judgment, and copies were distributed to
the parties before they left the hearing. For reasons that are
not clear, however, the judgment was not entered into the
court’s register.
Defendant successfully completed his probation at
the end of May 2018, when the trial court received confir-
mation that he had completed alcohol treatment, and it dis-
missed the pending show cause order. At that point, defen-
dant had completed serving his sentence. One year later,
the prosecuting attorney filed a Notice of Non-compliance
with Bench probation. After conducting an “administra-
tive review,” the trial court issued an order, noting that
Cite as 314 Or App 576 (2021) 581
“[p]robation is over in this case[,]” and requiring the par-
ties to show cause why it should not enter a new amended
judgment. The parties were given 10 days to file written
objections or to request a hearing. Four days later, the state
filed a “motion for amended judgment” requesting the court
“impose a $1,500 fine, $255 DUII conviction fee and a $100
bench probation fee.” Four days after that, defendant filed
a written response to the state’s motion for amended judg-
ment requesting that the February 23, 2018, judgment not
be amended and noting that he had fulfilled his sentence. A
hearing was docketed for June 7, 2019, at the same time as
a status check on a new matter involving defendant, which
was before Judge Hill rather than Judge Temple. Defendant,
through counsel this time, again argued that he was unable
to pay the fines and fees. And defense counsel, who had not
been present for the February 23, 2018, hearing, advised the
court that
“I did take a look at the amended judgment as well, that
Judge Temple prepared, which does suspend all the fines.
It does suspend all the legal financial obligations, which I
do believe that is consistent with law.
“And so basically this morning what we’re asking the
Court to do here is to find that [defendant] does not have an
ability to pay, and that the Court just enter the judgment
that Judge Temple filled out back in February of 2018 and
for some reason was never entered.”
The state, appearing by and through the same prosecuting
attorney that had appeared for resentencing on February 23,
2018, contradicted defense counsel and responded that
“the judgment—the draft judgment that was prepared was
not prepared by Judge Temple. The reason it was not signed
is Judge Temple did not authorize it. The State objected.
It was prepared by a clerk and was never adopted by the
Court. So the Court should give that zero weight.”2
2
The state’s description of the judgment was not accurate. As explained in
footnote 1, there was an earlier “amended judgment” that was vacated as having
been entered in error, but there was no hearing associated with that judgment.
Whether the prosecuting attorney was mistakenly referring to that vacated judg-
ment is not known. But the February 23, 2018, amended judgment was signed by
the court at the February 23, 2018, hearing after it received approval by the same
prosecuting attorney who later appeared on June 7, 2019.
582 State v. Larson
The state then argued that the court should impose a bench
probation fee, a fine, and the mandatory DUII conviction
fee. The trial court agreed with the state and imposed a
$1,500 fine, a $255 DUII conviction fee, and a $100 bench
probation fee, none of which were suspended. It found that
those obligations were appropriate based on defendant’s
“circumstances and past history.” It explained that it did
“not find[ ] any need to exercise discretion for [defendant’s]
inability to pay” because “[h]e might be unemployed, but he
has the ability to work. He’s just not there.”
As an initial matter, the state contends that defen-
dant did not preserve his argument that the trial court
lacked the authority to impose the fines and fees because
his term of probation had expired. We disagree. Defendant
asked the court not to amend the February 23, 2018,
amended judgment when he filed his written objection to
the state’s motion for amended judgment because (1) he
“served a term of imprisonment and fulfilled his term of pro-
bation” and (2) he “should not be penalized now because the
amended judgment was not recorded properly at the time.”
That argument was sufficient to put both the state and
the trial court on notice of the arguments that defendant
now advances on appeal. See State v. Walker, 350 Or 540,
548, 258 P3d 1228 (2011) (explaining that the purpose of
the preservation requirement “ensures fairness to opposing
parties, by requiring that ‘the positions of the parties are
presented clearly to the initial tribunal’ so that the ‘parties
are not taken by surprise, misled, or denied opportunities to
meet an argument’ ” (quoting Davis v. O’Brien, 320 Or 729,
737, 891 P2d 1307 (1995))).
We review defendant’s claim that the trial court
“failed to comply with the requirements of law in imposing
a sentence for errors of law.” State v. Capri, 248 Or App 391,
394, 273 P3d 290 (2012).
Turning to the merits, we agree with defendant
that the trial court was without authority on June 7, 2019, to
impose the fines and fees that it imposed. Defendant’s sen-
tence of probation became effective at the time of the origi-
nal sentencing, on February 24, 2016. State v. Hoffmeister,
164 Or App 192, 196 n 2, 990 P2d 910 (1999). The judgment
Cite as 314 Or App 576 (2021) 583
signed on that date also required defendant to pay the fees
and fines that we later vacated in Larson I. On February 23,
2018, when Judge Temple resentenced defendant on remand
from us, she explicitly imposed and then suspended defen-
dant’s $1,500 fine and the bench probation fee, conditioning
execution on violation of defendant’s conditions of proba-
tion.3 In the absence of such a violation, the fines and fees
would remain suspended. The “money award” section of the
written judgment that she prepared and signed at the hear-
ing included an obligation of $0. The court tied those sus-
pended monetary obligations to defendant’s sentence of pro-
bation. It made the obligations immediately effective. The
court then signed and distributed copies of the judgment.
Entry was not necessary to give effect to the amended judg-
ment because it was clear that the court intended to give
immediate effect to the condition of probation that defen-
dant would have to pay the fines and fees should he fail to
comply with what remained of his sentence of probation. See
State v. Quackenbush, 116 Or App 453, 455-56, 841 P2d 671(1992) (“[W]hen it is clear from the record that a condition
of probation is to take effect immediately, the validity of the
condition does not depend on entry of the judgment.”).
At the point of the second “resentencing hearing”
in June 2019, defendant had completed his sentence of pro-
bation. The original date for expiration of probation was
February 23, 2018. That date was necessarily extended
while the probation violation show cause order remained
pending—until May 22, 2018, when defendant provided proof
that he had completed treatment and the court cancelled the
show cause hearing. Once completed, defendant had served
his sentence. In other words, his sentence had been fully
executed. Although the court’s suspension of the monetary
obligation in February 2018 meant that the monetary obliga-
tion was not executed or “put into effect,” the condition that
3
We also understand the trial court to have suspended the $255 conviction
fee. Although it is less clear that the court intended for that fee to be suspended,
the record shows that, at the end of the hearing, the parties engaged in a discus-
sion about the fees, during which the court clarified its intent to impose and sus-
pend or waive fines and fees in the total amount of $1,855, consisting of a $1,500
fine, a $255 bench probation fee, and the $100 bench probation fee. The record,
thus, demonstrates that the court intended to relieve defendant of the $1,855 in
obligations so long as he did not violate the conditions of his probation.
584 State v. Larson
he comply with probation to avoid having to pay those fines
clearly was. Once defendant’s probation period ended in May
2018, his sentence was served, and the court no longer had
authority to revoke or otherwise modify the conditions of
probation or to execute the fines that had been suspended
in February 2018 as a compliance mechanism designed to
incentivize defendant to complete treatment and, therefore,
his probationary sentence. Cf. State v. Zimmerman, 166 Or
App 635, 639, 999 P2d 547 (2000) (explaining that the court
was authorized to amend the judgment to require the defen-
dant to pay a portion of the previously suspended fine as part
of its “ongoing supervisory authority” over the defendant’s
probation). Here, probation was over, and there was nothing
left for the court to supervise. It no longer had authority
to execute the fees that had been suspended in February
2018.
ORS 137.545(1)(a) provides that the period of proba-
tion is “as the court determines” and subsection (2) authorizes
the court to issue arrest warrants for violations of probation
“during the probation period.” And, while ORS 137.540(9)(a)
provides that “the court may at any time modify the con-
ditions of probation[,]” it is evident that any modifications
must be made “during the probation period.” See State v.
Stanford, 100 Or App 303, 786 P2d 225 (1990) (explaining
that, because the state filed its motion to extend and mod-
ify probation before the date on which the defendant’s orig-
inal probation period was to have expired, the trial court
retained jurisdiction to modify and extend probation); State
v. Lopez, 30 Or App 687, 691, 567 P2d 1059 (1977) (explain-
ing that, “where the ‘show cause’ order initiating the revo-
cation process is itself issued prior to the expiration of the
probationary period, the court retains jurisdiction to enter
a revocation order after the period has expired”). Here, nei-
ther the court’s show cause order nor the state’s motion for
amended judgment were filed before the date on which defen-
dant completed serving his sentence, including his sentence
of probation. And there is nothing about the court’s failure
to properly enter the February 23, 2018, amended judgment
that changes that. We therefore conclude that the proper
disposition of this matter is to reverse the amended judg-
ment dated June 7, 2019, and to remand with instructions
Cite as 314 Or App 576 (2021) 585
for the trial court to enter the amended judgment that was
signed by Judge Temple on February 23, 2018.
Amended judgment dated June 7, 2019, reversed;
remanded for entry of amended judgment signed on
February 23, 2018.