State v. Thomas

• Citation: 425 P.3d 437,292 Or.App. 756
• Decision Date: 11 July 2018
• Docket Number: A158547
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Allen Raymond THOMAS, Defendant-Appellant.
• Court: Court of Appeals of Oregon

292 Or.App. 756
425 P.3d 437

STATE of Oregon, Plaintiff-Respondent,
v.
Allen Raymond THOMAS, Defendant-Appellant.

A158547

Court of Appeals of Oregon.

Submitted September 19, 2016.
July 11, 2018

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Shawn Wiley, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.

Before Lagesen, Presiding Judge, and Egan, Chief Judge, and Schuman, Senior Judge.

LAGESEN, P. J.

292 Or.App. 758

Defendant appeals a judgment of conviction for three counts of unlawful sexual penetration in the first degree, ORS 163.411. He contends that (1) the mandatory 300-month sentence imposed on each count of conviction is unconstitutionally disproportionate, in violation of Article I, section 16, of the Oregon Constitution and the Eighth Amendment to the United States Constitution, and that the trial court erred in concluding otherwise; (2) the trial court committed plain error when it ordered him to pay $1,600 toward the cost of court-appointed counsel; and (3) the court erred in ordering him to pay a "Mandatory State Amt." of $107. For the reasons that follow, we accept the state's concession that the trial court erred in imposing a mandatory state amount and reverse the portion of the judgment ordering defendant to pay that amount, but otherwise affirm.

The facts pertinent to the issues on appeal are largely procedural and, in any event, are not disputed. Defendant, who was 20 years old at the time, used his hand to penetrate the vagina of a nine-year-old girl. He did so multiple times over the course of a two-day period. For that conduct, a jury convicted defendant of three counts of unlawful sexual penetration in the first degree, ORS 163.411. On each of the three counts, the trial court sentenced defendant to concurrent 300-month terms of incarceration, as required by ORS 137.700(2)(b)(F). It did so over defendant's objection that the 300-month term of

425 P.3d 439

imprisonment was unconstitutionally disproportionate, both facially and as applied to him, in violation of Article I, section 16, and the Eighth Amendment.

Before trial, defendant twice posted security deposits to secure his release from jail. He posted $10,000 to secure his release initially and, after he had been jailed again for violating the conditions of his release, he posted another $2,500. Each time defendant posted money as security, he signed an agreement. In that agreement, he acknowledged that the amounts posted would be used to satisfy any financial obligations imposed in the instant case and any outstanding financial obligations from prior cases and, therefore, might not be returned to him:

292 Or.App. 759

"1. AS THE PERSON POSTING SECURITY, YOU MAY NOT HAVE YOUR MONEY RETURNED.

"The security deposit you are posting, less the security release costs (15%), will be applied toward payment of any unpaid fines, costs, application fees, contribution fees, assessments, restitution or court-appointed attorney fees and expenses that the defendant may have in this case or on any other court case where the defendant owes money to the court, including the defendant's past due child support obligations. If all of defendant's financial obligations have been satisfied, any remaining security deposit balance may be applied to financial obligations you owe to the Court."

(Underscoring, emphasis, and capitalization in original.) When sentencing defendant, the trial court relied on the monies that defendant had posted as security to find that defendant had funds available to pay $1,600 in court-appointed attorney fees: "Court finds based upon the fact that there was bail, security posted, that there [are] monies available to contribute to attorney fees under the Oregon Indigent Defense guidelines. That's $1600 attorney fee obligation on count one." The court further ordered that $1,600 in attorney fees and the fine that it had imposed "would come out of the security post." Defendant did not object when the court explained what it was doing.

The trial court also imposed a "Mandatory State Amt." of $107 in its written judgment, but did not inform defendant that it was going to do so before it entered the judgment.

Defendant appealed. As noted, he contends that (1) the trial court erred by rejecting his constitutional challenges to the 300-month sentences under ORS 137.700 ; (2) the trial court plainly erred "when it required defendant to pay court-appointed attorney fees as part of his sentence"; and (3) erred in requiring him to pay the $107 mandatory state amount.

We start with defendant's constitutional challenges to his sentence, reviewing the trial court's rejection of those challenges for legal error. See State v. Conrad , 280 Or. App. 325, 333-34, 381 P.3d 880 (2016), rev. den. , 360 Or. 851, 389 P.3d 1141 (2017). Defendant explicitly acknowledges that we have rejected

292 Or.App. 760

nearly identical as-applied constitutional challenges in a number of cases that are not distinguishable from this one in any material way: State v. Hoover , 250 Or. App. 504, 280 P.3d 1061 (2012) ; State v. Wiese , 238 Or. App. 426, 241 P.3d 1210 (2010) ; State v. Shaw , 233 Or. App. 427, 225 P.3d 855 (2010) ; State v. Alwinger , 231 Or. App. 11, 217 P.3d 692 (2009), adh'd to as modified on recons. , 236 Or. App. 240, 236 P.3d 755 (2010) ; State v. Pardee , 229 Or. App. 598, 215 P.3d 870, rev. den. , 347 Or. 349, 222 P.3d 30 (2009). Defendant contends that those cases are "wrongly decided," but does not assert that the criteria for overruling our precedent are met. See generally State v. Civil , 283 Or. App. 395, 388 P.3d 1185 (2017) (identifying the circumstances in which we will consider overruling prior precedent). Under those circumstances, defendant's as-applied Article I, section 16, and Eighth Amendment challenges to his 300-month sentences must fail as contrary to binding precedent. As for his facial challenges, our rejection of his as-applied challenges compels us to reject them too. Pardee , 229 Or. App. at 600, 215 P.3d 870 (explaining that a conclusion that a sentencing statute is constitutional as applied to a particular defendant necessarily defeats an argument that the statute is unconstitutional on its face).

425 P.3d 440

We turn to defendant's challenge to the imposition of $1,600 in court-appointed attorney fees. Defendant concedes that he did not object to the imposition of fees, and requests that we review for plain error. Pointing to State v. Baco , 262 Or. App. 169, 170-71, 324 P.3d 491 (2014) ; State v. Pendergrapht , 251 Or. App. 630, 284 P.3d 573 (2012) ; and State v. Kanuch , 231 Or. App. 20, 24, 217 P.3d 1082 (2009), defendant asserts that the trial court's imposition of fees was plainly erroneous for two distinct reasons: (1) the trial court did not make the finding that defendant "is or may be able to pay" the fees, as required by ORS 151.505(3) and ORS 161.665(4) ; and (2) the record contains no evidence to support a finding that defendant "is or may be able to pay" fees.

To be eligible for correction as "plain error," an alleged error, among other things,...