State v. Anderson
| Decision Date | 10 June 1992 |
| Citation | 113 Or.App. 416,833 P.2d 321 |
| Parties | STATE of Oregon, Respondent, v. Steven Martin ANDERSON, Appellant. P196211; CA A67101. Court of Appeals of Oregon, In Banc * |
| Court | Oregon Court of Appeals |
Garrett A. Richardson, Portland, argued the cause and filed the brief, for appellant.
Janet A. Klapstein, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Defendant pled guilty to DUII. ORS 813.010. The trial court suspended imposition of sentence and placed him on probation. One of the conditions of probation requires him to pay $200 in restitution. Defendant objected on the ground that there was no evidence in the record to support that or any other figure. The trial court entered a sentencing order, including restitution of $200. We vacate the order of restitution and remand for resentencing.
Because defendant pled guilty, his appeal is governed by ORS 138.050 and 138.053, which limit our review to whether the disposition either exceeds the maximum allowable by law or is unconstitutionally cruel and unusual. Our scope of review was changed by Or.Laws 1989, ch. 849, §§ 3, 4 and 5. Under former ORS 138.040, because probation was not a "sentence," it was not subject to the limited review provisions of ORS 138.040 and ORS 138.050. State v. Carmickle, 307 Or. 1, 7, 762 P.2d 290 (1988); State v. Donovan, 307 Or. 461, 770 P.2d 581 (1989). In 1989, however, the legislature amended ORS 138.040 and ORS 138.050 so that the references to "sentence" were changed to "disposition." It also enacted ORS 138.053, which specifies which "dispositions" are appealable and subject to limited review, including those that place a defendant on probation. Under the 1989 amendment, the limit of ORS 138.050 is that, after a plea of guilty or no contest, a judgment suspending imposition of sentence and placing a defendant on probation is now reviewable only as to whether it exceeds the maximum disposition allowable by law or is cruel and unusual.
However, the fundamental question is: What is a disposition that "exceeds the maximum allowable by law?" In State v. Bateman, 95 Or.App. 456, 463, 771 P.2d 314, rev. den. 308 Or. 197, 777 P.2d 410 (1989), we construed ORS 138.050 as it then read and held that a "sentence" that exceeds the maximum allowable by law is one in which "the period of incarceration imposed is more than the period specified in the relevant statute." Under Bateman, a sentence exceeded the maximum allowable by law only if it exceeded the statutory term of imprisonment, but not if the sentence was unauthorized because it was imposed in violation of other statutory requirements. See also State v. Blaney, 101 Or.App. 273, 790 P.2d 549 (1990).
However, because the present version of ORS 138.050 limits review of "dispositions"--including those which grant or revoke probation--and does not use the term "sentence," we conclude that Bateman's interpretation of what "exceeds the maximum allowable by law" means is not now consistent with the amended statute. Bateman's reference to an excessive "period of incarceration" does not apply to dispositions imposing or revoking probation. We conclude that, given the statutory changes regarding the appeal and review of dispositions after guilty pleas, a disposition is legally defective and, therefore, exceeds the maximum allowable by law if it is not imposed consistently with the statutory requirements. 1
After the 1989 amendments to ORS 138.050, we still followed Bateman's strict interpretation of the former statute regarding what exceeds the maximum allowable by law. In State v. Peters, 104 Or.App. 582, 801 P.2d 904 (1990), the defendant challenged a sentence of imprisonment imposed after he pled guilty to nine crimes. He argued that the trial judge's oral pronouncement did not include a minimum sentence and that, once the sentence was imposed and he began to serve it, the court illegally modified the sentence in the written judgment to include a minimum term. We held that, whether or not the sentence was unauthorized, it did not exceed the maximum term of imprisonment that could be imposed. Therefore, we held that we could not review the defendant's assignment of error under the current ORS 138.050.
We continued to apply the Bateman reasoning in State v. King, 107 Or.App. 249, 810 P.2d 413, rev. den. 312 Or. 151, 817 P.2d 758 (1991) and State v. Ross, 108 Or.App. 560, 815 P.2d 719 (1991). King and Ross followed Peters to hold that, whether or not the restitution orders involved were imposed illegally, they did not exceed the maximum amount that could have been ordered. Therefore, we held that we could not review them under the current ORS 138.050. Because we conclude that the reasoning in Bateman no longer applies under the amended statute, we now overrule Peters, King, and Ross.
Defendant does not dispute that the trial court had authority under ORS 137.106 to impose restitution for DUII, but a trial court can order restitution only for monetary damages caused by a defendant's criminal activity that is either proven or to which he admits. ORS 137.103(1); State v. Jones, 113 Or.App. 425, 833 P.2d 320 (decided this date); State v. Stockton, 105 Or.App. 162, 164, 803 P.2d 1227 (1991). Defendant argues that the trial court erred in fixing the amount because, although he pled guilty, he did not admit to--and the state did not prove--any specific amount of restitution. The record reveals that the state failed to "investigate and present to the court, prior to or at the time of sentencing, evidence of the nature and amount of such damages." ORS 137.106(1). The burden was on the state to prove the amount of restitution, and it failed to do that.
ORS 137.106(3) provides:
"If the defendant objects to the imposition, amount or distribution of the restitution, the court shall at the time of sentencing allow the defendant to be heard on such issue."
Because the state failed to present evidence to establish the appropriate amount of restitution and because defendant objected to the sufficiency of the evidence but was not afforded a hearing, the restitution order exceeded the maximum allowable by law.
Conviction affirmed; order of restitution vacated; remanded for resentencing.
The majority not only holds that defendant can challenge his restitution on direct appeal despite his guilty plea, but also goes on to overrule three of our recent cases: State v. Ross, 108 Or.App. 560, 815 P.2d 719 (1991); State v. King, 107 Or.App. 249, 810 P.2d 413, rev. den. 312 Or. 151, 817 P.2d 758 (1991); State v. Peters, 104 Or.App. 582, 801 P.2d 904 (1990). It does that because it assumes that State v. Bateman, 95 Or.App. 456, 771 P.2d 314, rev. den. 308 Or. 197, 777 P.2d 410 (1989), has been legislatively superseded by the 1989 amendments to ORS 138.050. I believe Bateman, Peters, King, and Ross are all still good law. Accordingly, I dissent.
In my view, replacing the word "sentence" with "disposition" hardly merits wholesale reconsideration of our scope of review. Even if that change is as significant as the majority suggests, the legislature still did not touch the phrase "maximum allowable by law." Because the legislature chose to keep that same language, I would continue to give it the same meaning that we have given it in our past cases. It means the statutory maximum. That is what we said it meant the last five times that we visited this question (i.e., the four cases above plus State v. Blaney, 101 Or.App. 273, 790 P.2d 549 (1990)). The legislature has met twice since State v. Bateman, supra, was decided, and it has had ample opportunity to change the statutory language that we interpreted in our holdings. Because it did not do so, I would again conclude that "maximum allowable by law" continues to mean the statutory maximum.
To reach its result, the majority must construe the meaning of the statute. To do that it must first decide that it is ambiguous and then consult the legislative history to resolve the ambiguity. Satterfield v. Satterfield, 292 Or. 780, 782, 643 P.2d 336 (1982). I believe that ORS 138.050 is plain on its face, so there is no need to construe its meaning. Still, even assuming that we need to construe the statute, and even assuming that the change from "sentence" to "disposition" somehow makes the phrase "maximum allowable by law" ambiguous, the majority reaches its result by ignoring the legislative history of the amendments. The purpose of those amendments that the majority uses to broaden our scope of review was in fact intended to narrow our review. Also, the legislative history shows that the legislature expressly rejected a set of amendments that would have broadened our scope of review.
In State v. Carmickle, 307 Or. 1, 762 P.2d 290 (1988), and State v. Donovan, 307 Or. 461, 770 P.2d 581 (1989), the Supreme Court held that defendants could refuse a probation term and demand to be incarcerated. In response to those cases, the Oregon District Attorneys' Association requested a bill amending ORS 137.010 to prevent defendants from refusing probation. That bill became House Bill 2470, 1 which was passed by the House and sent to the Senate, where it was assigned to the Senate Judiciary Committee. The State Court Administrator then suggested the amendments to ORS 138.040 and ORS 138.050 that the majority relies on. 2
The State Court Administrator testified before the Judiciary Committee that one of the problems created by Donovan was how to handle appeals from probation. The Supreme Court held that, because probation is not a sentence and ORS 138.040 and ORS 138.050 govern appellate review of sentences, appeals from probation were not subject to the limitations in those statutes. Instead of dealing with the question of whether or not probation is a...
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