State v. Edson

• Decision Date: 29 July 1999
• Citation: 985 P.2d 1253,329 Or. 127
• Parties: STATE of Oregon, Petitioner on Review, v. Debra Lynn EDSON, Respondent on Review.
• Court: Oregon Supreme Court

985 P.2d 1253

329 Or. 127

STATE of Oregon, Petitioner on Review, v. Debra Lynn EDSON, Respondent on Review.

(CC 10-94-12098; CA A87550; SC S43263).

Supreme Court of Oregon.

Argued and Submitted March 8, 1999.

Decided July 29, 1999.

Jonathan H. Fussner, Assistant Attorney General, Salem, argued the cause for petitioner on review. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Andy Simrin, Deputy Public Defender, Salem, argued the cause for respondent on review. With him on the brief was Sally L. Avera, Public Defender.

Before CARSON, Chief Justice, and GILLETTE, VAN HOOMISSEN, DURHAM, LEESON, and RIGGS, Justices.¹

GILLETTE, J.

In this criminal case, defendant pleaded guilty to attempted assault in the second degree. The trial court placed defendant on probation for a period of three years and ordered her to pay a substantial sum in restitution within 24 months of the date of judgment, although it expressly stated that she did not have the ability to pay that amount within that time. The Court of Appeals vacated the restitution provision of the trial court's judgment but otherwise affirmed. State v. Edson, 139 Or.App. 412, 912 P.2d 423 (1996). We allowed review to consider both the substantive issue of the amount of restitution that could be imposed in this case and the procedural question whether it was permissible for the Court of Appeals to vacate the restitution portion of the trial court's judgment, rather than remand the case to the trial court for resentencing. We conclude that the trial court erred when it required defendant to pay a large amount of restitution in a 24-month period, despite her demonstrated inability to pay such an amount, but that the Court of Appeals erred in failing to remand the case for resentencing. Accordingly, we affirm in part and reverse in part the decision of the Court of Appeals and remand the case to the trial court for resentencing.

We take the following undisputed facts from the findings of the trial court and from the record. Defendant, who suffers from bipolar psychiatric disorder, attacked her landlord, apparently during a psychotic episode that occurred because she had stopped taking her medication. The victim has been deaf and paralyzed on one side since birth but, through multiple surgeries and hard work, gained the ability to walk. During the attack, defendant grabbed the victim by his good arm, wrenched it severely and threw him against a wall. When the victim fell to the floor, defendant kicked him and hit him with pieces of firewood. She then temporarily ceased the attack, during which time the victim attempted to retreat into his apartment. Before the victim was able to escape from defendant, however, she again attacked him, throwing pieces of firewood at him. The victim suffered permanent injuries, both physical and psychological, and incurred medical and other expenses in excess of $20,000.

Defendant was charged with assault in the second degree and pleaded guilty to the lesser-included offense of attempted assault in the second degree. At defendant's sentencing hearing, the prosecutor tendered to the court a restitution schedule seeking restitution in the amount of $20,552.41. Defendant's lawyer advised the court that, because of her mental illness, defendant is unable to work and that her sole income is about $600 per month that she receives from Social Security. Nothing in the record suggests that defendant has any other source of income.

The trial court placed defendant on probation for a period of three years. In addition, the court sentenced defendant to pay restitution in the amount of $20,552.41, payable within two years.² The court ordered that payment of restitution be made a condition of defendant's probation and made the following comments:

"In regard to restitution, this is a case which cries out for restitution. It also is equally as—cries out that this lady will never be able to pay, really, any portion of any restitution. Either the state or the Federal Government, or [the victim] or some of his relatives will be compelled to pick up the load and considering the $10,000 hospital bill, some of the patrons of the Sacred Heart Hospital who can afford to pay their hospital bills are going to pick up part of that load.

"But some of you are old enough to have heard that you can't get blood out of a turnip. That's what we have got here. And they only let me put her on probation for three years. But, as they say, do the best you can with what you have got. That's all we can do."

The trial court's authority to sentence a defendant to pay restitution is governed by ORS 137.106(1) and (2),³ which provide:

"(1) When a person is convicted of criminal activities * * *, which have resulted in pecuniary damages, * * * the district attorney shall investigate and present to the court, prior to the time of sentencing, evidence of the nature and amount of such damages. In addition to any other sentence it may impose, the court may order that the defendant make restitution to the victim.

"(2) In determining whether to order restitution which is complete, partial or nominal, the court shall take into account:

"(a) The financial resources of the defendant and the burden that payment of restitution will impose, with due regard for the other obligations of the defendant;

"(b) The ability of the defendant to pay restitution on an installment basis or on other conditions to be fixed by the court; and

"(c) The rehabilitative effect on the defendant of the payment of restitution and the method of payment."

Before the Court of Appeals, defendant contended that the trial court's restitution order was inconsistent with the requirements of the foregoing statute because, in defendant's view, the trial court expressly had found that defendant never would have the ability to pay any amount of restitution. In response, the state argued that ORS 137.106(2) merely requires the trial court to "take into account" the defendant's ability to pay when ordering restitution, but does not make that single criterion dispositive. According to the state, the trial court considered defendant's ability to pay and ordered her to pay restitution nonetheless. As noted, the Court of Appeals agreed with defendant and vacated the restitution part of the trial court's judgment.

Whether the trial court was permitted under ORS 137.106 to sentence defendant to pay restitution, notwithstanding her financial circumstances, is a matter of statutory interpretation. In interpreting a statute, this court uses the methodology set out in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993), which directs us first to look to the text of the statute to discern the intent of the legislature. Id. at 610-11, 859 P.2d 1143. Although the text of a statutory provision is the best evidence of the legislature's intent, we also consider, at the first level of analysis, the context of the statutory provision at issue, which includes other provisions of the same statute and other related statutes. Ibid. If the legislature's intent is clear after that analysis, then further inquiry is unnecessary. PGE, 317 Or. at 611, 859 P.2d 1143.

We note at the outset that, although both defendant and the Court of Appeals appear at times to treat a defendant's financial circumstances as relevant to the permissibility of imposing a sentence of restitution under ORS 137.106(1), that is not what the statute provides. The plain wording of that statute leaves the decision whether to sentence a defendant to make restitution to the discretion of the trial court.⁴ Certainly, nothing in the wording of ORS 137.106(1) prevents the trial court from ordering a defendant with limited financial resources to pay restitution. As this court has explained, there are three prerequisites to an order of restitution under ORS 137.106(1):(1) criminal activities, (2) pecuniary damages, and (3) a causal relationship between the two. State v. Dillon, 292 Or. 172, 181, 637 P.2d 602 (1981). If those three prerequisites are present, then the procedural requirements and penological considerations implicated in the decision whether to impose restitution are the same as those ordinarily associated with sentencing. Id. at 180-81, 637 P.2d 602. As this court stated in State v. Hart, 299 Or. 128, 138, 699 P.2d 1113 (1985),

"[t]he purpose of ordering restitution at a sentencing hearing is not to provide full compensation of all damages to victims of crime. Rather, the restitution is to be ordered only as it is relevant in correcting defendant's behavior and as a step to accomplishing the traditional goals of sentencing such as rehabilitation of the defendant and deterrence to impress upon the defendant the seriousness and cost of his offense."

No party now appears to question whether the statutory prerequisites to restitution are present in this case.⁵ Accordingly, we turn to the central issue, viz., whether, having chosen to impose restitution, the trial court could impose under ORS 137.106(2) the amount of restitution that it did and require that amount to be paid within two years.

Once the trial court decides to impose restitution, ORS 137.106(2) sets out the criteria that the court must consider in determining the amount of restitution (complete, partial, or nominal) and the conditions under which it should be paid. Again, however, nothing in the wording of that subsection suggests that the court may not impose restitution at all if the defendant has limited financial resources. The requirement that the three enumerated factors be "take[n] into account" simply means that the trial court must consider all three factors. Moreover, by its terms, ORS 137.106(2) does not make any one factor more important than any other—the importance of each factor, relative to the others, will vary with the circumstances of the particular case.

Once it has considered the...