State v. IGNACIO GUTIERREZ
| Decision Date | 16 February 2005 |
| Citation | 106 P.3d 670,197 Or. App. 496 |
| Parties | STATE of Oregon, Respondent, v. Oscar IGNACIO GUTIERREZ, Appellant. |
| Court | Oregon Court of Appeals |
Jennelle Meeks Barton, Deputy Public Defender, argued the cause for appellant. With her on the brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Office of Public Defense Services.
Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General. Before LANDAU, Presiding Judge, and BREWER, Chief Judge,1 and ARMSTRONG, Judge.
A jury convicted defendant of felony fleeing or attempting to elude a police officer.2 ORS 811.540(1)(b)(A). At sentencing, the trial court ordered defendant to pay restitution for damage that he caused to a police car while attempting to flee. The court also imposed 36 months' probation, twice the presumptive probation sentence. On appeal, defendant does not challenge his conviction, but he argues that the court failed to consider his financial circumstances before ordering him to pay restitution. He also argues that his probationary sentence is unlawful under State v. Wedge, 293 Or. 598, 652 P.2d 773 (1982), and Blakely v. Washington, 542 U.S. ___, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), because the court based the sentence on aggravating factors to which he did not admit and that the state did not prove to the jury beyond a reasonable doubt.3 Defendant concedes that the latter argument is unpreserved, but he contends that we may review it as error apparent on the face of the record. We affirm.
The police were summoned to a residence in Portland after defendant entered the residence uninvited. When they arrived, they saw defendant leaving and ordered him to stop. Defendant drove away in his van, and the officers pursued him with their emergency lights and sirens on. Defendant did not pull over, and more patrol cars joined the pursuit. The police attempted to stop the van by steering into it to try to make defendant lose control. The first attempt failed, but a second succeeded; the van spun, and defendant came to a stop on the unpaved shoulder of a freeway on-ramp. Several officers positioned their cars around the van, but defendant again attempted to drive away. The van hit one of the patrol cars, causing damage to the patrol car's left front fender and causing its airbags to deploy. The officers apprehended defendant when he jumped out of the van and attempted to run away.
A jury convicted defendant of one count each of fourth-degree assault (Count 1), first-degree criminal trespass (Count 2), felony fleeing or attempting to elude a police officer (Count 3), and reckless driving (Count 4). At sentencing, the state asked that defendant be ordered to pay restitution of $7,863.66, the cost to repair the damaged patrol car. Defendant objected, arguing that he had no ability to pay that amount. Defendant's counsel noted that defendant had been in jail for 15 months at that point. She also argued that defendant did not have a regular profession, that he worked part time when work was available, and that he earned "a hundred, a hundred fifty dollars a day doing painting, dry wall, that sort of thing." Counsel also asserted that defendant was facing charges in the State of Washington and asserted that, as a result of his conviction in this case, defendant could be deported by the United States Immigration and Naturalization Service (INS). The state responded that defendant was young and healthy and had the ability to earn money. With respect to defendant's immigration status, the state asserted that its recommendation was made with the assumption that defendant would remain in the community. It noted that he had not previously been deported in spite of having three prior convictions for driving under the influence of intoxicants. The state argued that it was logical to assume that defendant would remain in the community and that he should be sentenced accordingly.
The trial court rejected defendant's argument that he lacked the ability to pay, and it ordered him to pay $7,863.66 in restitution. The court imposed no particular payment terms. In addition, for the convictions on Counts 1 and 2, the court imposed consecutive sentences of 12 months and six months in jail, respectively. For Count 4, the court sentenced defendant to a five-year term of probation. For Count 3, the presumptive sentence was 18 months' probation. OAR 213-017-0010. However, the court found that the harm or loss that defendant caused was significantly greater than typical for the offense and that there were multiple victims or incidents. Accordingly, it imposed an upward durational departure sentence of 36 months' probation. The sentences imposed on Counts 3 and 4 did not include jail time as a condition of probation. The court entered a judgment reflecting defendant's convictions and sentences, and this appeal followed.
In his first assignment of error, defendant argues that the trial court failed sufficiently to consider his ability to pay when it imposed restitution. He asserts that the court did not inquire into the nature of the charges in Washington or how much prison time he would be facing there. Defendant also argues that, although there was evidence that he had been earning up to $750 per week before his arrest, there was no evidence that he could continue to earn that amount after serving his consecutive 6- and 12-month incarceration terms. Finally, he contends that, if he is deported, given his work skills and education, it is unlikely that he can pay the restitution unless he returns to the United States illegally. He asserts that, although the state argued at trial that he would be allowed to stay in this country, there is no evidence that that is the case. Defendant argues that a court cannot base a person's ability to pay on the assumption that the person will engage in unlawful activity in order to do so.
In a separate argument in support of his first assignment of error, defendant contends that the imposition of restitution violated his right to trial by jury under the Sixth Amendment to the United States Constitution, as construed in Blakely, because the trial court, rather than the jury, determined the amount of restitution. Defendant concedes that he did not raise that argument before the trial court, but he contends that it is reviewable as error apparent on the face of the record.
In response to defendant's statutory argument, the state contends that defendant bore, and failed to meet, the burden of proving that he could not pay restitution. The state asserts that the record does not conclusively establish that defendant would be unable to pay. It argues that the trial court was not required to speculate as to whether defendant would be deported or what effect deportation might have on his ability to pay. Finally, the state argues that the record does not establish that the trial court failed to consider defendant's ability to pay before ordering restitution.
We begin with defendant's statutory argument. The imposition of restitution is governed by ORS 137.106.4 The applicable version of that statute provided, in part:
A restitution order is proper if, "in light of the record as a whole, a trial court reasonably could have imposed it." State v. Hart, 329 Or. 140, 148, 985 P.2d 1260 (1999).
Here, defendant acknowledges that a court "must consider a defendant's financial circumstances before imposing the amount of restitution to be repaid under ORS 137.106." (Emphasis added.) But he does not specifically object to the amount of restitution ordered or to the payment terms. He appears to focus primarily on the notion that any amount or terms would be unreasonable because the record does not establish that he will ever be able to pay the restitution. In other words, his primary argument appears to be that the trial court erred in imposing restitution at all.
That argument is unavailing. In State v. Edson, 329 Or. 127, 132-33, 985 P.2d 1253 (1999), the Supreme Court explained that ORS 137.106(1) sets out the prerequisites to a decision to order restitution, while ORS 137.106(2) provides the criteria that a court must consider in determining the amount of restitution and the conditions under which it should be paid. The only factors that pertain to ORS 137.106(1) are criminal activities, pecuniary damages, and a causal relationship between the two; ability to pay is not a factor that courts are required to consider when deciding whether to impose restitution:
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