State v. Kirschner

• Decision Date: 19 February 2016
• Docket Number: CA A154602,CC F19697,SC S063069.
• Citation: 358 Or. 605,368 P.3d 21
• Parties: STATE of Oregon, Respondent on Review, v. Kade William KIRSCHNER, Petitioner on Review.
• Court: Oregon Supreme Court

358 Or. 605

368 P.3d 21

STATE of Oregon, Respondent on Review,

v.Kade William KIRSCHNER, Petitioner on Review.

CC F19697

CA A154602

SC S063069.

Supreme Court of Oregon.

Argued and Submitted Sept. 15, 2015.

Decided Feb. 19, 2016.

Morgen E. Daniels, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief was Ernest G. Lannet, Chief Defender, Office of Public Defense Services.

Doug M. Petrina, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

Amy C. Liu, Portland, filed the brief for amicus curiae the National Crime Victim Law Institute. With her on the brief was Margaret Garvin.

Before BALMER, Chief Justice, and KISTLER, WALTERS, LANDAU, BALDWIN, BREWER, and NAKAMOTO, Justices.^**

WALTERS

, J.

Defendant challenges the imposition of restitution, under ORS 137.106

,¹ for wages that the victim lost when the victim was subpoenaed to testify at defendant's criminal trial and restitution hearing. In a per curiam decision, the Court of Appeals affirmed the restitution award, citing State v. Ramos, 267 Or.App. 164, 340 P.3d 703 (2014). State v. Kirschner, 268 Or.App. 716, 342 P.3d 1026 (2015). We allowed review of both Ramos and the present case, and we now affirm the decision of Court of Appeals and the judgment of the circuit court.

The pertinent facts are not in dispute. Defendant and his co-defendant broke into the victim's home and, after the victim confronted them, they fled. Defendant was apprehended shortly thereafter, and the police found defendant in possession of drugs and a concealed weapon. Defendant was charged with various crimes, including burglary, trespass, criminal mischief and carrying a concealed weapon, as well as several drug offenses. The victim was subpoenaed for trial, but, shortly before the trial was scheduled to occur, defendant entered into a plea agreement under which he pleaded guilty to two drug possession charges and the charge of carrying a concealed weapon; the state dismissed the other charges. Defendant also agreed to pay the victim restitution in an amount to be determined by the court.

The state sought an award of restitution for expenses that the victim had incurred to make home repairs necessitated by defendant's crime and for wages that he had lost in order to make those repairs. The state also sought an award of restitution for two additional categories of lost wages. The victim incurred those categories of lost wages when, in response to the state's subpoena, he took time off work to attend defendant's criminal trial and the later restitution hearing.² At the restitution hearing, defendant agreed to pay restitution for the victim's home repair costs and the wages he lost in making those repairs, but challenged the court's ability to impose restitution for the additional categories of lost wages. Those challenged categories—the wages that the victim had lost because he took time off to attend defendant's criminal trial and the wages that the victim had lost because he took time to attend the restitution hearing—totaled approximately $900. Counsel for co-defendant argued that those lost wages were not recoverable because subpoenaed witnesses are entitled to a witness fee and mileage from the state.

Defendant made a similar argument in the Court of Appeals, arguing that the victim's lost wages to attend the criminal trial and restitution hearing were "costs" of the prosecution and therefore could not qualify as "economic damages" under ORS 137.106

and ORS 31.710. As noted, the Court of Appeals affirmed based on Ramos, and defendant petitioned for review, which we allowed.

The arguments that defendant advances in this court are similar to those that we considered in Ramos, decided this date. State v. Ramos, 358 Or. 581, ––– P.3d ––––, 2016 WL 746422 (2016)

.³ First, as did the defendant in Ramos, the defendant in this case argues that to be recoverable as restitution, a victim's economic damages must be reasonably foreseeable. For the reasons given in Ramos, we agree. Id. at ––––, ––– P.3d at ––– –.

Second, defendant argues, citing ORCP 68

, that in civil actions, "costs and expenses" of litigation are recoverable, if at all, under that provision, and are not considered "economic damages." Defendant asserts that because, under the American Rule, a party to a civil action may not recover the costs incurred in that action as damages, a victim in a criminal proceeding also may not be awarded such costs as restitution. See Ramos, 358 Or. at ––––, ––– P.3d at –––– (describing Ramos defendant's similar argument).

Although defendant is correct in his description of ORCP 68

and the American Rule, those rules do not preclude a party from recovering litigation costs incurred in a separate proceeding as "economic damages." Ramos, 358 Or. at ––––, ––– P.3d at ––––. As we explained in Ramos, restitution is a criminal sanction, and, even if we were to apply the American Rule by analogy, that rule would not preclude a trial court from awarding litigation costs that a victim incurred in the underlying criminal prosecution as "economic damages" in a restitution proceeding. Id. at ––––, ––– P.3d at ––– –.

In this case, our reasoning in Ramos fully addresses one category of the challenged lost wages; that is, the wages that the victim lost when subpoenaed to appear at defendant's criminal trial. For the reasons stated in Ramos, the trial court did not commit legal error in awarding those lost wages.

Our reasoning in Ramos does not, however, address the other category of challenged lost wages: the wages that the victim lost when he was subpoenaed to testify at the restitution hearing. In Ramos, we reserved the question whether the American Rule precludes such an award, see id. 358 Or. ––––, –––P.3d at –––

– (reserving question), but that question is at issue here.

In considering defendant's argument that we apply the American Rule to this second category of lost wages, we think it significant that the victim was subpoenaed to testify as a witness for the state. The victim lost wages because he was required to respond to that subpoena, not because he made an independent decision to attend the hearing to protect his interests. In that circumstance, the rationale that underlies the American Rule does not apply, and we will not rely on that rule to preclude an award of restitution. Although the victim may...