State v. Colgrove

• Decision Date: 06 January 2021
• Docket Number: A169952
• Citation: 308 Or.App. 441,480 P.3d 1026
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Rhonda COLGROVE, Defendant-Appellant.
• Court: Oregon Court of Appeals

308 Or.App. 441

480 P.3d 1026

STATE of Oregon, Plaintiff-Respondent,

v.Rhonda COLGROVE, Defendant-Appellant.

A169952

Court of Appeals of Oregon.

Submitted October 27, 2020.

January 6, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patricia G. Rincon, Assistant Attorney General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

AOYAGI, J.

Defendant was found guilty of driving under the influence of intoxicants (DUII), ORS 813.010, and placed in a diversion program. When she failed to satisfy all of the diversion conditions during the diversion period, the trial court issued a show-cause order as to why diversion should not be terminated. At defendant's arraignment, the court appointed counsel and, by "supplemental judgment" entered December 3, 2018,¹ ordered defendant to pay $70 toward the costs of counsel. After holding a show-cause hearing, the court terminated diversion on January 4, 2019. The court convicted and sentenced defendant on the same day, by way of a judgment that was later amended on January 16, 2019. As relevant here, the court sentenced defendant to probation and ordered her to pay a $2,000 fine, a $255 DUII conviction fee, and a $100 probation fee.

On appeal, defendant raises five assignments of error. In her first assignment of error, she argues that the trial court erred in terminating diversion, based on her failure to attend a victim impact panel during the diversion period, either because the diversion agreement did not set a deadline to attend or because the trial court could have retroactively removed the condition. In her second through fourth assignments of error, she argues that the trial court erred in imposing fines and fees under the mistaken belief that it lacked discretion not to impose them. In her fifth assignment of error, she argues that the trial court erred on this record in requiring her to pay $70 for court-appointed counsel. For the following reasons, we affirm the termination of diversion, vacate the $255 fee, remand for resentencing, and reverse the supplemental judgment.

TERMINATING DIVERSION

As part of her diversion agreement, defendant was required to attend a victim impact panel. In her first assignment of error, defendant challenges the trial court's decision to terminate diversion based on her failure to attend a victim impact panel during the diversion period. The parties disagree as to the reviewability of the court's termination decision. Defendant argues that it is reviewable, notwithstanding that defendant pleaded guilty to DUII, while the state insists that it is unreviewable. See ORS 138.105(5) (precluding appellate review of a conviction based on a guilty plea, with two limited exceptions). Assuming without deciding that the trial court's decision to terminate diversion is reviewable, defendant's argument fails on the merits. Cf. State v. Canales , 301 Or. App. 668, 670, 458 P.3d 720, rev. den. , 366 Or. 552, 466 P.3d 69 (2020) (taking similar approach to similar claim of error).

Although it is true that the trial court had discretion whether to order defendant to attend a victim impact panel—see ORS 813.235 (a trial court "may" require as a condition of a DUII diversion agreement that the defendant attend a victim impact panel, if the county has a victim impact program)—here, the trial court did in fact order defendant to attend a victim impact panel as a condition of her DUII diversion agreement. Defendant failed to satisfy that condition during the diversion period. The diversion order plainly stated the diversion period, and, when defendant entered diversion, the court reiterated that she had to complete all requirements within one year. We reject defendant's argument that the diversion agreement permitted her to attend a victim impact panel at any time, including after the diversion period ended. We also reject defendant's argument that the court erred because it could have retroactively removed the condition that she attend a victim impact panel. Defendant never asked the court to reconsider its original order, and the court was not required to do so sua sponte .

FINES AND FEES

In her third assignment of error, defendant argues that the trial court erred in imposing the $255 DUII conviction fee, because it incorrectly believed that it lacked discretion regarding that fee. Based on the court's oral ruling, we agree with defendant that the court did not recognize that it had discretion not to impose that fee. We also agree that the claim of error was sufficiently preserved. Finally, we agree that the court relied on an inaccurate legal premise in making its ruling, in that the court had discretion not to impose the $255 fee if defendant was "indigent." ORS 813.030 ("The fee required by ORS 471.432 and 813.020(1) shall be in the amount of $255, except that the court may waive all or part of the fee in cases involving indigent defendants."). Because the trial court's imposition of the $255 fee was based on an erroneous legal premise, we remand for resentencing. See Golik v. CBS Corp. , 306 Or. App. 202, 213, 472 P.3d 778 (2020) (when a court has discretion whether to do something, we review for "predicate legal error" and, if there was none, abuse of discretion). In doing so, we decline defendant's request that we vacate the fee without remand. It is for the trial court to decide whether defendant is "indigent" and, if so, whether to exercise its discretion to waive all or part of the fee.

In her second and fourth assignments of error, defendant argues that the trial court erred in imposing the $2,000 mandatory minimum DUII fine and the $100 bench probation fee, because the court incorrectly believed that it lacked discretion. More precisely, defendant argues that, although the court was required to impose that fine and fee,² it failed to recognize its discretion to suspend some or all of the fine and fee. See ORS 137.010(3) ("[T]he court may suspend the imposition or execution of any part of a sentence for any period of not more than five years."); see also , e.g. , State v. Adams , 275 Or. App. 160, 161, 362 P.3d 1211 (2015) (noting that, upon convicting the defendant of DUII, the trial court imposed a $1,500 fine but suspended $1,000 of the fine pending the defendant's successful completion of probation). The state does not dispute that the trial court had suspension authority, but it argues that defendant did not request suspension and did not adequately preserve the suspension issue; defendant argues that she did adequately preserve the issue. We need not resolve the preservation dispute, because the case is remanded for resentencing based on the third assignment of error, and the trial court "may impose a new sentence" on remand, ORS 138.257(4), including exercising its discretion to decide whether to suspend the fine and fee at issue in the second and fourth assignments of error. The parties' arguments about the $2,000 fine and the $100 fee are...