State v. Pacheco
Decision Date | 13 March 2002 |
Parties | STATE of Oregon, Respondent, v. Reyna Mendoza PACHECO, Appellant. |
Court | Oregon Court of Appeals |
Robin A. Jones, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, State Public Defender.
Kathleen Cegla, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Before HASELTON, Presiding Judge, and LINDER and WOLLHEIM, Judges.
This appeal presents a novel question: Did the trial court err in ordering defendant, an illegal alien, to pay over $20,000 in restitution to the State of Oregon, notwithstanding that defendant cannot work lawfully in the United States because of her undocumented status? We conclude that the trial court's stated rationale in fixing restitution does not support the imposition of restitution of the amount, and on the terms required. Accordingly, we vacate the court's award of restitution and remand for further proceedings.
The material facts are undisputed. Defendant, a Mexican national, was an undocumented alien. She and her family1 lived in the Boardman area, where she worked unlawfully for several years. Between October 1996 and April 1999, defendant fraudulently obtained various public assistance benefits totaling $20,218.
In August 1999, defendant was charged with multiple counts of unlawfully obtaining public assistance, ORS 411.630; welfare provider fraud, ORS 411.675; theft in the first degree, ORS 164.055; and forgery in the first degree, ORS 165.013. In May 2000, pursuant to a negotiated agreement, defendant pleaded guilty to one count of unlawfully obtaining public assistance. The court sentenced her to 18 months of probation, with misdemeanor treatment upon completion, and ordered that she pay full restitution for the state's loss. Specifically, the court ordered the entry of a money judgment of $20,382, including restitution of $20,218;2 directed that the restitution obligation be docketed as a civil judgment; and specified that defendant repay that judgment at the rate of $100 per month beginning in August 2000.
The sole issue on appeal is whether the court erred in setting the amount and terms of restitution. At the core of the dispute is the colloquy between counsel and the court at the restitution hearing, which occurred in July 2000. At that hearing, the state presented the testimony of two witnesses, both representatives of the Adult and Family Services Division, who described the circumstances and extent of defendant's fraudulent receipt of public assistance benefits. Both witnesses confirmed that defendant was an undocumented alien, and one briefly referred to her employment history with two different employers over the preceding years. However, neither witness testified regarding the nature of defendant's work or her earnings. Defendant did not testify.
The state then asserted that the court should order restitution in the full amount of the benefits that defendant had fraudulently obtained:
Defendant's counsel responded:
(Emphasis added.)
Counsel for the state then replied:
The court then ruled:
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