State v. Gruver

• Jurisdiction: Oregon
• Citation: State v. Gruver, 247 Or.App. 8, 268 P.3d 760 (Or. App. 2011)
• Docket Number: 200912390; A143858.
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Nichol Rae GRUVER, Defendant–Appellant.
• Court: Oregon Court of Appeals
• Decision Date: 14 December 2011

247 Or.App. 8

268 P.3d 760

STATE of Oregon, Plaintiff–Respondent,

v.Nichol Rae GRUVER, Defendant–Appellant.

200912390; A143858.

Court of Appeals of Oregon.

Submitted June 8, 2011.Decided Dec. 14, 2011.

Peter Gartlan, Chief Defender, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.

Before BREWER, Chief Judge, and HASELTON, Judge, and GILLETTE, Senior Judge.^*BREWER, C.J.

Defendant appeals her conviction for theft in the first degree, ORS 164.055, challenging the trial court's award of restitution.Defendant argues that the trial court erred by imposing restitution in the absence of sufficient evidence of the value of the merchandise that she stole or the necessary repair costs for the property that she damaged.Defendant concedes that her assignment of error is unpreserved, but she urges us to conclude that the error is plain and exercise our discretion to correct it.Because the trial court did not plainly err, we affirm.

The pertinent facts are undisputed.Defendant and an accomplice entered a department store and began placing items of jewelry into a satchel.Defendant took the satchel into a dressing room and removed the jewelry from its packaging.Defendant then took the packaging into a restroom and attempted to flush the packaging down a toilet.When doing so, she damaged a toilet.Defendant was apprehended by store loss-prevention personnel, and the jewelry that she had stolen was recovered, although some of it was damaged.Defendant was convicted by a jury of first-degree theft.

At defendant's sentencing hearing, the state sought a restitution award to the victim in the amount of $4,179.59.The prosecutor submitted a “restitution schedule” to the court which included two line items: (1)“Loss: Damaged Jewelry $3,809.99” and (2)“Loss: Plumbing Bill $369.00.”The prosecutor made no other showing in support of the amount of restitution sought; however, at trial, the department store's loss-prevention supervisor had testified that she had identified the jewelry that defendant stole after it was recovered and had determined its value to be $3,809.99.Another loss-prevention employee had testified that the department store's maintenance and housekeeping staff had had to clear the toilet of jewelry packaging.The trial court awarded restitution “pursuant to the restitution schedule.”Defendant did not object to either the imposition of restitution or the amount of the award.The trial court entered a judgment that included the restitution award, and this appeal followed.

Defendant concedes that she failed to preserve her challenge on appeal but argues, nevertheless, that imposition of the award was plainly erroneous because the state failed to adduce sufficient evidence of the victim's economic loss.The state responds, first, that, because defendant failed to avail herself of her statutory right to object to the imposition of a restitution award or the amount of the restitution award under ORS 137.106(5), she cannot challenge that award on appeal.Second, the state contends that the “restitution schedule” established the nature and amount of the victim's damages and, thus, the trial court did not err in imposing the restitution award.We reject the state's argument under ORS 137.106(5), but we agree that the trial court did not plainly err by imposing the restitution award.

ORS 137.106(5) provides that, “[i]f [a]defendant objects to the imposition * * * of restitution, the court shall allow the defendant to be heard on such issue.”According to the state, a defendant's failure to do so “precludes appellate review.”For that proposition, the state relies on several decisions by this court that interpreted formerORS 137.106(3), renumbered asORS 137.106(5)(2003).¹For example, in State v. Carpenter,101 Or.App. 489, 492, 791 P.2d 145, rev. den.,310 Or. 393, 798 P.2d 672(1990), we held, following State v. Keys,41 Or.App. 379, 381, 597 P.2d 1266(1979), that, because formerORS 137.106(3)“specifically grant[s] a right to be heard, failure to object prevents a challenge on appeal.”The state argues that, because ORS 137.106(5) is virtually identical to formerORS 137.106(3), defendant's assignment is unreviewable because she“waived” her statutory right to be heard.

The state acknowledges that, more recently, we have reviewed on appeal challenges to a restitution award where no objection was made to the sentencing court and that we have done so by concluding that the imposition of restitution in those cases was “plain error.”See, e.g., State v. Harrington,229 Or.App. 473, 211 P.3d 972, rev. den.,347 Or. 365, 222 P.3d 1091(2009).However, the state asserts that the statutory waiver argument that it advances here “was not made in Harrington ” and, thus, “this court was not alerted to the controlling law of those earlier decisions.”Accordingly, the state urges this court to “reconsider its position that an unpreserved objection to restitution may nevertheless be pursued on appeal, either as plain error or otherwise.”

We acknowledge that some of our decisions based on formerORS 137.106(3) appear at first blush to support the state's position.However, none of those cases directly construed the operative language of the statute under the controlling principles set out in State v. Gaines,346 Or. 160, 171–72, 206 P.3d 1042(2009), andPGE v. Bureau of Labor and Industries,317 Or. 606, 859 P.2d 1143(1993).Indeed, in our prior decisions, we“did not focus on or even consider the words of the statute[ ] that we now recognize to be pivotal.”State v. Sandoval,342 Or. 506, 513, 156 P.3d 60(2007).Accordingly, to determine whether we should accept the state's invitation to revisit our implicit conclusion in Harrington that an unpreserved challenge to a restitution award is reviewable on appeal, we examine the text, context, and legislative history of the pertinent statutory framework.

FormerORS 137.106(3) was enacted in 1977 and remained unchanged until 2003, when it was renumbered as ORS 137.106(5) and amended to provide:

“If the defendant objects to the imposition, amount or distribution of the restitution, the court shall allow the defendant to be heard on such issue at the time of sentencing or at the time the court determines the amount of restitution.”

As noted, as originally enacted, formerORS 137.106(3) provided:

“If the defendant objects to the imposition, amount or distribution of the restitution, the court shall at the time of sentencing allow him to be heard on such issue.”

We agree with the state that the minor changes to the wording and syntax of the statute, as amended, do not appear to alter its meaning.However, as an initial matter, we observe that neither the text of ORS 137.106(5) nor the text of formerORS 137.106(3) expressly provided that, if a defendant fails to object to the imposition, amount, or distribution of restitution, such failure precludes appellate review of the trial court's award.Rather, both versions of the statute merely grant defendants the right to have their objections heard.SeeState v. Umphery,241 Or.App. 36, 39, 248 P.3d 449, rev. den.,350 Or. 571, 258 P.3d 527(2011)(so stating).In addition, none of the other subsections of ORS 137.106(1977) supports the state's argument that a defendant's failure to assert his or her statutory right to a hearing constituted a “waiver” of appellate review of the award of restitution.²Cf.Fox v. Collins,238 Or.App. 240, 251, 241 P.3d 762(2010), rev. den.,350 Or. 297, 255 P.3d 489(2011)(“[U]nder Oregon law, waiver is the ‘intentional relinquishment of a known right.’ ”(Internal quotation marks omitted.)).Moreover, none of the surrounding statutes governing the imposition of restitution provides support for that argument.

With our focus firmly fixed on the pertinent statutory framework, we turn to a more detailed discussion of the cases on which the state relies.ORS 137.106 was enacted in 1977 as part of the legislature's comprehensive overhaul of Oregon's restitution statutes in response to the Supreme Court's opinion in State v. Stalheim,275 Or. 683, 552 P.2d 829(1976).SeeState v. Dillon,292 Or. 172, 175–76, 637 P.2d 602(1981)(so stating).By enacting ORS 137.103 to ORS 137.109, the 1977legislature“intended to codify Stalheim in certain respects, but to depart from it in others.”Dillon,292 Or. at 178, 637 P.2d 602.As we recognized in State v. Ivie,38 Or.App. 453, 456, 590 P.2d 740(1979), the court's observation in Stalheim that, “if there remains some question as to the amount of the victim's loss, the defendant is entitled to a hearing on that issue[,]”275 Or. at 688, 552 P.2d 829, was likely the reason for the enactment of formerORS 137.106(3).

In Ivie,we analyzed, for the first time, the provision of ORS 137.106 granting a defendant the right to a hearing as to the imposition, amount, or distribution of restitution.There, the defendant had contested the amount of restitution before the trial court but had not requested a hearing as provided by the statute.We concluded that

“[ former ]ORS 137.106(3)andState v. Stalheim clearly grant defendant the right to a hearing to contest the amount of restitution.In this case, defendant did not request such a hearing and offered no evidence to contradict the victim's estimate of the value of the missing property.Because defendant did not offer contrary evidence or request the hearing to which he was entitled, the trial court did not err in ordering an amount of restitution based upon information from the victim.”

Ivie,38 Or.App. at 456–57, 590 P.2d 740.

We relied on Ivie in Keys, where the defendant had failed to “object at the time of sentencing to the court's failure to specify a schedule of [restitution] payme...