State v. Ramos

• Decision Date: 26 November 2014
• Docket Number: A150423.,C092342CR
• Citation: 267 Or.App. 164,340 P.3d 703
• Court: Oregon Court of Appeals
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Ema RAMOS, Defendant–Appellant.

267 Or.App. 164

340 P.3d 703

STATE of Oregon, Plaintiff–Respondent

v.Ema RAMOS, Defendant–Appellant.

C092342CR

A150423.

Court of Appeals of Oregon.

Submitted Dec. 18, 2013.

Decided Nov. 26, 2014.

Peter Gartlan, Chief Defender, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Doug M. Petrina, Senior Assistant Attorney General, filed the brief for respondent.

Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and TOOKEY, Judge.

Opinion

SERCOMBE, P.J.

Defendant set fires in her restaurant and made an insurance claim for the resulting damage to restaurant equipment. She was subsequently convicted of arson, in connection with setting the fires, and attempted aggravated theft, in connection with the fraudulent insurance claim. On appeal, she challenges only the restitution that the trial court ordered her to pay. First, she contends that any award of restitution violated either the Sixth Amendment to the United States Constitution or Article I, section 17, of the Oregon Constitution. The parties agree, as do we, that those arguments were not preserved, and we conclude that the purported error is not plain. Accordingly, we do not reach the merits of defendant's constitutional arguments. Alternatively, she challenges the restitution that she was ordered to pay to her insurance company, Oregon Mutual Insurance Group (Oregon Mutual). Defendant contends that some of that restitution was improperly ordered under ORS 137.106, the statute authorizing restitution in criminal cases. As to that assignment of error, we conclude that the challenged expenses were appropriate subjects of restitution. Accordingly, we affirm.

The facts related to this appeal are undisputed. After defendant was found guilty, the state sought restitution awards to Shalimar Properties (defendant's landlord), State Farm Insurance (the landlord's insurer of the premises), and Oregon Mutual (defendant's insurer of the contents of the premises). The state and defendant stipulated to $42,532.32 in restitution to Shalimar Properties and State Farm Insurance, and the trial court ordered that restitution. The state also sought restitution of $28,417.98 to Oregon Mutual.¹ The state provided evidence that Oregon Mutual had paid various sums totaling that amount to a law firm, a forensics company, two investigators, and a court reporting company in connection with its investigation and processing of defendant's claim, and to assist it in cooperating with the state's investigation of the fires and prosecution of defendant. Defendant disputed the propriety of some parts of that restitution, but, after a hearing, the trial court ordered that defendant pay Oregon Mutual the full amount.

In her first assignment of error, defendant argues that the trial court erred in ordering any restitution because—under either the Sixth Amendment or Article I, section 17 —a restitution award must be based on jury findings or a valid jury waiver, neither of which occurred in this case. The parties agree—as do we—that defendant did not raise that issue below, but defendant asks us to review it as error apparent on the record.

Generally, we will not consider an unpreserved issue on appeal. State v. Wyatt, 331 Or. 335, 341, 15 P.3d 22 (2000). Nonetheless, we may review an unpreserved assignment of error as one “apparent on the record” under ORAP 5.45(1) —also known as “plain error”—if certain conditions are met: (1) the error is one of law; (2) the error is “apparent,” in that the “legal point is obvious, not reasonably in dispute”; and (3) the error appears on the record, such that we need not go outside the record or choose between competing inferences to find it, and the facts constituting the error are irrefutable. State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990). Even when those conditions are satisfied, we must determine whether to exercise our discretion to consider the error and, if we choose to consider it, articulate our reasons for doing so.

Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 823 P.2d 956 (1991). For the reasons below, the legal points that defendant raises are not “obvious” and, accordingly, not appropriate subjects for plain error review.

Defendant first argues that the Sixth Amendment, as construed in Apprendi v. New Jersey, 530 U.S. 466, 120 S.Ct. 2348, 147 L.Ed.2d 435 (2000), and Blakely v. Washington, 542 U.S. 296, 124 S.Ct. 2531, 159 L.Ed.2d 403 (2004), requires that a jury must find the facts that provide the basis for restitution, unless the defendant waived the right to a jury determination. In Apprendi, the United States Supreme Court held that “[o]ther than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt.” 530 U.S. at 490, 120 S.Ct. 2348. Four years later, in Blakely, the Court illuminated what it meant when it referred to a “prescribed statutory maximum” sentence. It is, the Court explained, the

“maximum sentence a judge may impose solely on the basis of the facts reflected in the jury verdict or admitted by the defendant. * * * In other words, the relevant ‘statutory maximum’ is not the maximum sentence a judge may impose after finding additional facts, but the maximum [the judge] may impose without any additional findings.”

542 U.S. at 303–04, 124 S.Ct. 2531 (emphasis in original).

Defendant concedes that, at the time the trial court imposed restitution, we had held that, even if Apprendi and Blakely applied to restitution, the imposition of restitution under ORS 137.106 did not run afoul of the principles announced in those cases. State v. McMillan, 199 Or.App. 398, 403, 111 P.3d 1136 (2005). In McMillan, we explained that the facts necessary to impose restitution under ORS 137.106 are not facts that increase the penalty to which a defendant is subject beyond the statutory maximum, because the statutory maximum includes restitution for the full amount of the victim's pecuniary damages.² Id.; see also State v. Webster, 220 Or.App. 531, 535, 188 P.3d 329, rev. den., 345 Or. 318, 195 P.3d 65 (2008) (applying reasoning of McMillan to restitution under ORS 811.706, which permits the imposition of restitution for automobile accident-related damages; statutory maximum sentence encompasses amount of damages caused by the person as a result of the incident that gave rise to the charges for which the defendant was convicted); State v. Travalini, 215 Or.App. 226, 234, 168 P.3d 1159 (2007), rev. den., 344 Or. 110, 178 P.3d 249 (2008) (rejecting argument that trial court ran afoul of the Sixth Amendment by imposing restitution without having submitted the finding of facts underlying restitution to the jury; declining to overrule McMillan); State v. Mendez, 211 Or.App. 311, 314, 155 P.3d 54, rev. den., 343 Or. 160, 164 P.3d 1161 (2007) (rejecting argument that, under Apprendi, the determination of the amount of the victim's “economic damages” for purposes of restitution should have been submitted to the jury); State v. Black, 208 Or.App. 719, 721 n. 1, 145 P.3d 367 (2006) (same).

Defendant contends, however, that the holding of McMillan was erroneous under Southern Union Co. v. U.S., 567 U.S. ––––, 132 S.Ct. 2344, 183 L.Ed.2d 318 (2012).³ In Southern Union Co., the defendant, a natural gas distributor, had been charged with, inter alia, storing mercury without a permit “on or about September 19, 2002 until on or about October 19, 2004,” in violation of the Resource Conservation and Recovery Act of 1976 (RCRA) and was convicted of that charge after a jury trial. Id. at ––––, 132 S.Ct. at 2349 (internal quotation marks omitted). RCRA violations are punishable by a fine of not more than $50,000 for each day of violation. The defendant objected to a proposed $38.1 million fine (the maximum for each of the 762 days between September 19, 2000 and October 19, 2004) because the jury could have found it guilty even if it had found only a one-day violation. Therefore, the defendant maintained, the only violation that the jury necessarily found was for one day, and imposing a fine greater than $50,000 would require factfinding by the court in contravention of Apprendi. Id. at ––––, 132 S.Ct. at 2349. The Supreme Court held that the rule of Apprendi applies to the imposition of criminal fines. Id. at ––––, 132 S.Ct. at 2357. In reaching that conclusion, the Court observed that “[c]riminal fines, like * * * other forms of punishment, are penalties imposed by the sovereign for the commission of offenses” and that “the amount of a fine, like the maximum term of imprisonment or eligibility for the death penalty, is often calculated by reference to particular facts [such as] the amount of the defendant's gain or the victim's loss[.]” Id. at ––––, 132 S.Ct. at 2350–51. The government conceded that the trial court had made factual findings (i.e., about the number of days that the defendant had violated RCRA) that increased the fine that the court imposed. Id. at ––––, 132 S.Ct. at 2352. In doing so, the court took action that was “exactly what Apprendi guards against: judicial factfinding that enlarges the maximum punishment a defendant faces beyond what the jury's verdict or the defendant's admissions allow.” Id. at ––––, 132 S.Ct. at 2352.

Defendant contends that, after Southern Union Co., there is no dispute that a jury must determine the facts that set the maximum amount of restitution that a court may order a defendant to pay. In defendant's view, Southern Union Co. establishes that McMillan and its progeny were erroneous. Defendant maintains that, under ORS 137.106, the maximum amount of restitution that a court can impose without factual findings is zero. Accordingly, the jury verdict does not contain the information necessary to allow the court to impose restitution greater than zero and, to impose...