State v. Mahoney
| Decision Date | 14 October 1992 |
| Parties | STATE of Oregon, Respondent, v. Dennis Dal MAHONEY, Appellant. C89-11-36711; CA A65260. |
| Court | Oregon Court of Appeals |
Barry L. Adamson, Lake Oswego, argued the cause for appellant. With him on the brief were Roger Hennagin and Hennagin & Shonkwiler, Lake Oswego.
Virginia L. Linder, Sol. Gen., Salem, waived appearance for respondent.
David Paul and Merten & Associates, Portland, filed a brief amicus curiae for Lorraine Robertson.
Before RICHARDSON, P.J., JOSEPH, C.J., and DEITS, J.
Defendant pled no contest to one count of sexual abuse in the second degree, ORS 163.425, under an indictment charging four counts of sexual abuse in the second degree and one count of public indecency. ORS 163.465. He was placed on five years' probation, subject to 11 special conditions. He challenges three of those conditions. Two of the challenged conditions, 10 and 11, have become moot. 1 We address only his claim of error regarding probation condition 3:
"Defendant is to pay the victim * * * attorney fees in the amount of $10,414.79."
Defendant was the victim's supervisor at her place of employment. The criminal charges arose from the employment relationship. In 1986, the victim consulted an attorney about defendant's sexual harassment, and the attorney advised her about avenues that she could pursue. In 1989, when the sexual harassment had not stopped, her attorney began investigating and collecting information to present to the police to induce a criminal complaint against defendant. The attorney entered into discussions with the employer about the harassment. He also advised and counselled the victim as she proceeded through the criminal complaint process and until defendant entered his plea in February, 1990.
The victim was billed an hourly fee by the lawyer for services rendered to her until defendant entered his plea. After the plea of no contest, the victim decided to file a civil action and signed a contingency fee agreement with her attorney to prosecute that action. The services reflected in her request for restitution were all rendered before the no contest plea.
Defendant argues:
"A crime victim's attorney fees that have been incurred solely in contemplation of related civil litigation are not 'special damages' that can be imposed as restitution under ORS 137.103(2)."
Essentially, his argument is that the requested fees were accrued to prosecute the civil action and that fees sought in the same action in which they are incurred are not considered "special damages."
Restitution, for the purposes of ORS 137.106, is defined in ORS 137.103(2) to be "special damages, * * * which a person could recover against the defendant in a civil action arising out of * * * the defendant's criminal activities." There is little question but that the attorney fees were incurred because of defendant's criminal activities. The trial court so found, and defendant does not contest that finding. However, in order for the fees to be ordered as restitution, they must be special damages.
Defendant cites State v. O'Brien, 96 Or.App. 498, 774 P.2d 1109, rev. den. 308 Or. 466, 781 P.2d 1214 (1989), as dispositive. We said:
96 Or.App. at 505, 774 P.2d 1109.
Defendant argues that, as in O'Brien, the victim here is seeking restitution for attorney fees and expenses incurred in pursuing a civil claim against him.
Defendant did not contest the victim's statements or the affidavit of her attorney about the fees. The evidence was to the effect that she sought legal advice to help her deal with defe...
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State v. Gerhardt
...of restitution to shift the cost of a victim's private attorney to defendants, we have already taken that path. In State v. Mahoney, 115 Or.App. 440, 442, 838 P.2d 1100 (1992), modified on recons., 118 Or.App. 1, 846 P.2d 413, rev. den., 316 Or. 142, 852 P.2d 838 (1993), the victim of ongoi......
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State ex rel. Juvenile Dep't of Couglas Cnty. v. S.J.P. (In re S.J.P.)
...understood. In its post-argument memorandum of additional authorities in support of that argument, the state cites State v. Mahoney, 115 Or.App. 440, 443, 838 P.2d 1100 (1992), modified on recons., 118 Or.App. 1, 846 P.2d 413, rev. den., 316 Or. 142, 852 P.2d 838 (1993). In Mahoney, the def......
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State v. Herfurth
...the victim lost in order to testify at defendant's restitution hearing in response to the state's subpoena); State v. Mahoney , 115 Or.App. 440, 443, 838 P.2d 1100 (1992), adh'd to as modified on recons , 118 Or.App. 1, 846 P.2d 413, rev. den. , 316 Or. 142, 852 P.2d 838 (1993) (the trial c......
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Stste ex rel. Juvenile Dep't of Douglas Cnty. v. S. J. P. (In re S. J. P.)
...understood. In its post-argument memorandum of additional authorities in support of that argument, the state cites State v. Mahoney, 115 Or App 440, 443, 838 P2d 1100 (1992), modified on recons, 118 Or App 1, 846 P2d 413, rev den, 316 Or 142 (1993). In Mahoney, the defendant sexually harass......