State v. Moreno-Hernandez
| Decision Date | 13 June 2019 |
| Docket Number | CC C133034CR (SC S065930) |
| Parties | STATE of Oregon, Petitioner on Review, v. Victor C. MORENO-HERNANDEZ, Respondent on Review. |
| Court | Oregon Supreme Court |
Greg Rios, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Mary M. Reese, Deputy Public Defender, Office of Public Defense Services, Salem, argued the case and filed the brief for the respondent on review. Also on the brief was Ernest G. Lannet, Chief Defender.
This case concerns whether the trial court properly sentenced defendant to pay three $50,000 compensatory fines. As in several recent cases, this criminal sentencing question requires us to examine and to develop principles of tort law related to the recovery of economic damages. See State v. Gutierrez-Medina , 365 Or. 79, 442 P.3d 183 (2019) ; State v. Ramos , 358 Or. 581, 368 P.3d 446 (2016) ; State v. Islam , 359 Or. 796, 377 P.3d 533 (2016). Applying those principles, we agree with the Court of Appeals that the trial court erred in sentencing defendant to pay the compensatory fines that it did in this case, although we arrive at that conclusion by a different route. But we disagree, for reasons that we explain below, with the Court of Appeals’ decision simply to reverse the erroneous portion of defendant’s sentence; we conclude that a remand is required.
In 2012, defendant, an adult man, met S, a thirteen-year-old girl. S moved in with defendant, and he had sex with her multiple times. He also supplied her with methamphetamine. Defendant introduced S to his eventual codefendant, Toth, the manager of a strip club. Defendant and Toth agreed to have S work in the strip club, where she performed nude for customers and engaged in sexual acts with Toth and some of the club’s customers. Toth was paid for those acts of prostitution, and he split the proceeds with defendant.
S ultimately left defendant and came into the legal custody of the Department of Human Services (DHS). DHS attempted to provide treatment for S in Oregon, but ultimately sent her to Mingus Mountain, an Arizona residential treatment center for girls who are emotionally or behaviorally at risk, including girls who have been sexually exploited. While at that facility, S disclosed to a counselor that she had been sexually abused by defendant.
After an investigation by law enforcement, defendant was charged with multiple crimes relating to his rape and sexual abuse of S. Defendant went to trial on those charges. Multiple witnesses testified against him, including S and Toth. During the trial, S’s former caseworker testified that S had been in the legal custody of DHS during the entire time that she was treated at Mingus Mountain. The caseworker also testified that all children in DHS custody qualify for the Oregon Health Plan and that stays at Mingus Mountain would be paid for by that insurance.
Defendant was convicted of two counts of second-degree rape, two counts of second-degree sodomy, two counts of second-degree unlawful sexual penetration, two counts of first-degree sexual abuse, one count of unlawful delivery of methamphetamine to a minor, and four counts of compelling prostitution. Three of the compelling prostitution convictions were based on acts that took place at the strip club managed by Toth.
The trial court indicated that it was interested in imposing compensatory fines, as allowed by ORS 137.101(1), on those three compelling prostitution convictions. The state, recognizing the need to demonstrate that the victim had suffered economic damages before a compensatory fine could be imposed, presented the court with a letter indicating that S’s treatment at Mingus Mountain had cost approximately $168,000.
The trial court sentenced defendant to a total of 370 consecutive months in prison for the 13 convictions. The court also imposed a $50,000 compensatory fine on defendant on each of the three compelling prostitution convictions related to activities at the strip club. The judgment stated: "Pay a compensatory fine to: [S’s name] c/o DHS." The trial court also imposed a $200 punitive fine on each of those convictions.1
Defendant appealed, assigning error to the imposition of the compensatory fines.2 Defendant argued that the trial court erred in imposing the compensatory fines for several reasons: (1) that the state had failed to establish the statutory prerequisites for imposing a compensatory fine, specifically, that S was not a victim who had suffered economic damages; (2) that the state had failed to establish that defendant had the ability to pay $150,000 in fines; and (3) that the trial court had plainly erred by imposing both a $50,000 compensatory fine and a $200 punitive fine on each of the compelling prostitution counts.
The Court of Appeals agreed with defendant’s third argument and held that "the trial court plainly erred in imposing three $50,000 compensatory fines on Counts 16 through 18 [the compelling prostitution counts] in addition to the $200 punitive fines imposed for Counts 16 through 18." State v. Moreno-Hernandez , 290 Or. App. 468, 471, 415 P.3d 1088 (2018). The Court of Appeals then considered whether it was appropriate to remand the case for resentencing. The Court of Appeals concluded that "the record clearly demonstrates that a compensatory fine payable to S cannot be lawfully imposed," id. at 471-72, 415 P.3d 1088, and that there was therefore no reason to remand for resentencing, id. at 475, 415 P.3d 1088. The court reasoned:
Id. at 474-75, 415 P.3d 1088. The Court of Appeals therefore reversed the portion of the judgment requiring defendant to pay the compensatory fines but did not remand for resentencing. Id. at 475, 415 P.3d 1088. The state petitioned for review, which we allowed.
On review, we approach the issue somewhat differently from the Court of Appeals and, while we agree with some of that court’s legal conclusions, including that the trial court erred in imposing a compensatory fine directed to S, we disagree with its decision not to remand for resentencing.
We begin by considering the question that the parties have focused on, whether the statutory prerequisites for designating a fine as compensatory were established in this case.
A sentencing court’s authority to impose a compensatory fine derives from ORS 137.101(1), which provides:
ORS 137.101(1) must be understood in the context of a trial court’s other sentencing authority. Several statutes permit a sentencing court to impose a "fine" as a penalty. Those statutes include ORS 161.625(1) (for classified felonies), ORS 161.635(1) (for classified misdemeanors), and ORS 161.655 (). In this case, defendant’s compelling prostitution convictions were Class B felonies. ORS 167.017(2). Thus, under ORS 161.625(1), the sentencing judge was authorized to fine defendant "an amount, fixed by the court, not exceeding *** $250,000" on each of those counts.
The first sentence of ORS 137.101(1) states that "[w]henever the court imposes a fine as penalty for the commission of a crime *** the court may order that the defendant pay any portion of the fine separately to the clerk of the court as compensatory fines in the case." In other words, ORS 137.101(1) permits a trial court to direct that a portion of a fine imposed as a penalty under ORS 161.625(1) —or another statute authorizing the imposition of a fine—be designated as a compensatory fine and paid to an injured victim. However, ORS 137.101(1) governs only the decision to designate a portion of a fine as a compensatory fine; it is neither a source of authority for, nor a constraint on, a sentencing court’s initial imposition of "a fine as penalty for the commission of a crime."
Thus, ORS 137.101(1) envisions a two-step process for the imposition of compensatory fines. First, the court imposes a fine as a punishment for a crime, up to the maximum set by the applicable statute that authorizes the fine. The question of whether to impose a fine, and the amount to impose, is largely within the trial court’s discretion and to be determined based on the factors ordinarily appropriate in sentencing. The relevant statutes provide only limited guidance as to how the trial court should determine the total amount of the fine:
The second step is the designation of some or all of that fine as a "compensatory" fine payable to a victim, as...
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