State v. Neese, 99C52807.

• Decision Date: 24 June 2009
• Docket Number: 99C52807.,A110884.
• Citation: 210 P.3d 933,229 Or. App. 182
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Ric Curtis NEESE, Defendant-Appellant.
• Court: Oregon Court of Appeals

210 P.3d 933

229 Or. App. 182

STATE of Oregon, Plaintiff-Respondent, v. Ric Curtis NEESE, Defendant-Appellant.

99C52807.

A110884.

Court of Appeals of Oregon.

On appellant's Petition for Reconsideration March 18, 2009.

Decided June 24, 2009.

Rankin Johnson IV, Portland, for petition.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and HASELTON, Judge.

BREWER, C.J.

Defendant petitions for reconsideration of our opinion in State v. Neese, 226 Or.App. 407, 203 P.3d 364 (2009) (Neese II). In Neese II, we affirmed defendant's durational departure sentences for a variety of sex offenses because the facts underlying those departure sentences had been established beyond legitimate debate. Id. at 409, 203 P.3d 364. Defendant now argues that this court should have remanded the case for resentencing because the trial court imposed a compensatory fine in the absence of evidence demonstrating a pecuniary loss by the victim.

Defendant was convicted of two counts of first-degree sodomy and one count of unlawful sexual penetration committed against his four-year-old daughter. In addition to the terms of incarceration that it imposed, the trial court also imposed a $75,000 "compensatory fine levied for the benefit of the victim." The state had requested that fine, arguing that "[the victim] is now five years old. She's got her whole life in front of her. It's a very uncertain life and there is no guarantee that the defendant will continue * * * to maintain his paternal responsibilities relating to [the victim]." Defendant objected to the fine at sentencing and assigned its imposition as plain error in his opening brief. In that brief, defendant acknowledged that the assignment was unpreserved, but urged that it be reviewed as plain error. The state disagreed arguing that the error could not be plain, because imposition of the fine was not error at all.

We will review an unpreserved assignment of error as error apparent on the face of the record where the error is one of law, is not reasonably in dispute, and if the facts establishing the error are apparent on the face of the record. State v. Brown, 310 Or. 347, 355-56, 800 P.2d 259 (1990). Whether a trial court erred in imposing a compensatory fine is a question of law. State v. Gray, 113 Or.App. 552, 554, 833 P.2d 341 (1992). That a compensatory fine must be supported by evidence in the record of the victim's pecuniary loss is not reasonably in dispute. See, e.g., State v. Edson, 329 Or. 127, 132, 985 P.2d 1253 (1999). Thus, the dispositive question is whether the record in this case demonstrates that the trial court imposed a compensatory fine in the absence of supporting evidence. The court did so, and the error is plain.

In Edson, the Supreme Court explained that "there are three prerequisites for an order of restitution under ORS 137.106(1):(1) criminal activities, (2) pecuniary damages, and (3) a causal relationship between the two." 329 Or. at 132, 985 P.2d 1253. "Those same prerequisites apply when imposing a compensatory fine under ORS 137.101."¹ State v. Donahue, 165 Or.App. 143, 146, 995 P.2d 1202 (2000). A pecuniary loss can include "medical expenses and costs of psychological treatment or counseling." Id.

In this case, the state presented no evidence regarding any pecuniary loss by the victim. Although it was obvious from the fact that the trial court imposed a 470-month prison sentence that defendant would not be able to support the victim through employment earnings, the state presented no evidence regarding a lack of resources otherwise available to the victim. Nor did the state's evidence establish the magnitude of the victim's pecuniary loss. The court arrived at the $75,000 figure based on the state's representation of the value of unencumbered property that defendant owned, but there is no evidence in the record supporting an award of that amount to the victim based on her continuing financial needs or for the purpose of compensating her for the harm caused by defendant's crimes.

The state argues that, because the presentence investigator stated that the victim had suffered psychological harm and because the court "found" such harm when it imposed a departure sentence based on abnormally severe harm, counseling costs for the victim were foreseeable and thus justified imposition of the compensatory fine. That argument fails because the judicial finding was not evidence, and the presentence investigator's assertion that the victim had suffered psychological harm did not establish that she suffered a pecuniary loss, but only that she might suffer a loss in the future. Cf. Donahue, 165 Or.App. at 145-46, 995 P.2d 1202 (reversing imposition of compensatory fine where victim had scheduled, but not attended or incurred costs from, psychological counseling). Because...