State v. Boswell ( 1981 )

VAN HOOMISSEN, J.

Defendant appeals a judgment and sentencing order finding him guilty of one count of Theft in the First Degree and imposing a sentence based on his plea of guilty. He contends the court did not have authority to order restitution to victims of two charges which were dismissed as part of a plea bargain. He also contends the amount of restitution ordered was excessive.

Defendant was charged in a single indictment with three counts of Theft in the First Degree involving three separate victims. After plea negotiations he pled guilty to Count I, which charged theft of some railroad ties. Pursuant to the plea agreement, Counts II and m were dismissed. Most of the railroad ties were recovered and the railroad did not seek restitution on Count I. The court ordered defendant to make restitution to the victims identified in Counts II and HI.

Defendant contends that because he neither pled guilty to Counts II and m, nor admitted those offenses, the court could not require restitution on Counts II and HI. The state contends the defendant admitted the thefts alleged in the dismissed charges and, therefore, restitution on all three counts was proper. The state argues that a statement in paragraph 7 of defendant’s Petition to Enter Plea of Guilty, which was signed by the defendant and witnessed by his attorney,¹ constituted an admission of guilt on all three counts. The petition states:

"I know * * * the District Attorney shall make no recommendations to the Courts concerning my sentence except as follows Restitution if any for admitted complicity² in all 3 counts.”

A defendant may be ordered to make restitution to victims of crimes of which he has been convicted or which he admits. ORS 137.106(1); State v. Dillon, 51 Or App 729, 626 P2d 959 (1981); State v. Zimmerman, 37 Or App 163, 586 P2d 377 (1978). In State v. Armstrong, 44 Or App 219, 605 P2d 736, rev den 289 Or 45 (1980), we held the court lacked authority to order restitution to a victim of a crime when defendant’s responsibility for the crime remained unresolved. See also, State v. Cox, 35 Or App 169, 581 P2d 104 (1978); State v. Braughton, 28 Or App 891, 561 P2d 1040 (1977).

Defendant’s contention that he has not admitted the thefts alleged in Counts II and III is inconsistent with the statement in his plea petition. By signing that statement, defendant, while asking to plead guilty to one count and to have two counts dismissed, admitted his culpability on all three counts. Therefore, we conclude the order for restitution to the victims of all three offenses was authorized.³

Defendant’s second contention is that the restitution ordered was excessive. Defendant did not raise this issue in the trial court, nor did he request a hearing on the amount of restitution. ORS 137.106(3). We therefore decline to review the merits of that claim of error. State v. Ivie, 38 Or App 453, 590 P2d 740 (1979).

Affirmed.

1 Defendant was represented by competent and experienced defense counsel. The Certificate of Counsel, which constitutes an integral component of the defendant’s Petition to Enter Plea of Guilty, provides:

"The undersigned, as lawyer and counsellor for the above defendant hereby certifies:

"1. I have read and fully explained to the defendant the allegations contained in the indictment in this case, all lesser included charges and all possible defenses the defendant may have in this case.

"2. To the best of my knowledge and belief the statements, representations and declarations made by the defendant in the foregoing petition are in all respects accurate and true.

"3. I have explained the maximum penalty for each count to the defendant, and consider him competent to understand the charges against him and the effect of his petition to enter a plea of guilty.

"4. The plea of 'GUILTY’ offered by the defendant in paragraph 7 accords with my understanding of the facts he related to me and is consistent with my advice to the defendant.

"5. In my opinion the plea of 'GUILTY’ as offered by the defendant in paragraph 7 of the petition is voluntarily and understandingly made. I recommend that the Court accept the plea of 'GUILTY’.

"6. Having discussed this matter carefully with the defendant, I am satisfied, and I hereby certify, in my opinion, that he is mentally and physically competent; there is no mental or physical condition which would affect his understanding of these proceedings; further, I state that I have no reason to believe that he is presently operating under the influence of drugs or intoxicants. (Any exceptions to this should be stated by counsel on the record.)

"Signed by me in the presence of the defendant above named and after full discussion of the contents of this certificate with the defendant, this 22 day of July, 1980.

"/s/ Howard R. Lonergan_

Attorney for the Defendant”

2 Complicity: Association or participation in or as if in guilt. Webster’s Third New International Dictionary (1971).

3 Trial judges considering restitution for offenses other than those of which a defendant has been convicted would be well advised to establish clearly on the record that the defendant has admitted such offenses.