State v. Creech

230 P.3d 102 (2010) 235 Or. App. 183

STATE of Oregon, Plaintiff-Respondent,
v.
Donald Dean CREECH, Jr., Defendant-Appellant.

05CR0329; A139204.

Court of Appeals of Oregon.

Submitted March 25, 2010. Decided April 28, 2010.

Peter Gartlan, Chief Defender, and Robin A. Jones, Senior Deputy Public Defender, Appellate Division, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Anna M. Joyce, Assistant Attorney General, filed the brief for respondent.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and ROSENBLUM, Judge.

PER CURIAM.

Defendant was convicted of unlawful sexual penetration in the second degree, ORS 163.408, and sentenced to a term of incarceration. The court also imposed a compensatory fine in the amount of $500 and restitution of $2,000. On appeal, defendant raises six assignments of error. As to defendant's first four assignments of error, which challenge the conviction, we affirm without discussion.

In his fifth and sixth assignments of error, defendant contends that the trial court committed plain error when it imposed restitution and a compensatory fine because those sanctions were unsupported by evidence in the record that the victim had actually suffered a pecuniary loss. The state concedes that the imposition of the fine and restitution constituted plain error. We agree and accept the concession, exercise our discretion to review the error, and conclude the case must be remanded for resentencing. See State v. Harrington, 229 Or.App. 473, 477-78, 211 P.3d 972, rev. den., 347 Or. 365, 222 P.3d 1091 (2009) (reviewing as plain error imposition of restitution unsupported by evidence of the amount of the victim's loss); State v. Snyder, 220 Or.App. 440, 441, 186 P.3d 324 (2008) (concluding the trial court erred in imposing compensatory fine in absence of evidence of economic damage to victims).

Remanded for resentencing; otherwise affirmed.