State v. Thompson

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FILED: June 26, 2013 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. KIRK DOUGLAS THOMPSON, Defendant-Appellant. Polk County Circuit Court 10P3245 A147752 William M. Horner, Judge. Argued and submitted on March 22, 2013. Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services. Gregory A. Rios, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General. Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.* EGAN, J. Affirmed. *Egan, J., vice Sercombe, J. 1 EGAN, J. 2 This case requires us to determine whether the trial court had the authority 3 to issue an amended judgment requiring defendant to pay an additional amount of 4 restitution to a crime victim several months after the original entry of judgment on 5 defendant's criminal conviction. Defendant entered a guilty plea to one count of failing 6 to perform the duties of a driver; pursuant to that plea, a judgment was entered requiring 7 him to pay restitution to the victim, the City of Monmouth. Several months later, the 8 victim filed a claim asserting that its constitutional rights had been violated when the trial 9 court failed to order that defendant pay, as restitution, the full amount of the victim's 10 economic damages. The trial court subsequently entered an amended judgment requiring 11 defendant to pay an additional $1,694.37 in restitution. Defendant's timely appeal 12 followed the amended judgment. We affirm. 13 While driving a car in the City of Monmouth, defendant struck a stop sign 14 and a street light pole belonging to the city. Defendant subsequently pleaded guilty to 15 one count of failure to perform the duties of a driver when property is damaged, ORS 16 811.700. Prior to defendant's sentencing hearing, the Monmouth Public Works 17 Department filed a victim-loss statement with the prosecutor, stating that it had cost the 18 city $162.60 to fix the stop sign. The Monmouth Power and Light Department also filed 19 a separate victim-loss statement with the prosecutor, indicating that it had cost $1,694.37 20 to repair the damaged light pole. The prosecutor presented both those figures to the 21 court, but apparently did not present the $1,694.37 figure until just before defendant's 22 sentencing hearing. At that hearing, the court indicated that it was not going to order 1 1 restitution for the repair costs of the light pole because the prosecutor was late in 2 presenting that figure to the court.1 In a July 2010 judgment, the court sentenced 3 defendant to 13 months' probation. It also ordered defendant to pay $162.60 in restitution 4 to the City of Monmouth, reflecting the cost of the stop sign repair but not the light pole 5 repair. 6 In September 2010, the City of Monmouth filed a claim asserting that its 7 Oregon constitutional rights had been violated. Specifically, the claim alleged that the 8 trial court's refusal to order defendant to pay restitution for the light-pole repair violated 9 the city's constitutional right--as a crime victim--to receive prompt restitution. The trial 10 court held a hearing on the city's motion in December 2010, some five months after the 11 entry of judgment. The court concluded that it had erred by not ordering defendant to 12 pay restitution for the light-pole repair and subsequently entered an amended judgment 13 imposing $1,856.97 in restitution. Defendant appeals, asserting three arguments in support of his contention 14 15 that the trial court erred by imposing the additional restitution. First, defendant asserts 16 that, under Article I, section 42, of the Oregon Constitution, the city was required to 17 assert its rights by petitioning the Supreme Court for a writ of mandamus and that the 18 trial court therefore lacked authority to consider the city's victim's rights claim. He next 19 asserts that the city's claim was not timely filed under ORS 147.515. Defendant concedes 20 that he did not preserve that argument, but now argues that the time requirement of that 1 The trial court's only statement regarding its reasoning for not including restitution for the light-pole repair was: "Should have got their figure in." 2 1 statute restrains a trial court's jurisdiction to hear untimely victim's rights claims. Finally, 2 he asserts that, because the amended judgment was issued more than 90 days after the 3 original judgment, the trial court lacked authority under ORS 137.106 (2011) to impose 4 the additional restitution. 5 6 7 "We review sentencing decisions, including restitution orders, for errors of law." State v. Noble, 231 Or App 185, 189, 217 P3d 1130 (2009). Defendant first contends that, because he had already been sentenced in a 8 final judgment, Article I, section 42, divested the trial court of jurisdiction to consider the 9 city's victim's rights claim and that the city could only seek relief by petitioning for a writ 10 of mandamus in the Supreme Court. Article I, section 42, of the Oregon Constitution 11 creates several rights for crime victims, including "[t]he right to receive prompt 12 restitution from the convicted criminal who caused the victim's loss or injury." Or Const, 13 Art I, § 42(1)(d). Article I, section 42, contains three relevant provisions concerning 14 remedies for a violation of a victim's rights. The first states that every crime victim "shall 15 have remedy by due course of law for violation of a right established in this section." Or 16 Const, Art I, § 42(3)(a). Next, "[a] victim may assert a claim for a right established in 17 this section in a pending case, by a mandamus proceeding if no case is pending or as 18 otherwise provided by law." Or Const, Art I, § 42(3)(b). Finally, 19 20 21 22 23 "[t]he Legislative Assembly may provide by law for further effectuation of the provisions of this subsection, including authorization for expedited and interlocutory consideration of claims for relief and the establishment of reasonable limitations on the time allowed for bringing such claims." Or Const, Art I, § 42(3)(c). 3 Defendant pins his first argument on Article I, section 42(3)(b), arguing 1 2 that his case was not "pending" and that, therefore, the victim's only recourse was to 3 petition for a writ of mandamus in the Supreme Court. We disagree. The text of 4 subsection (3)(b)--"[a] victim may assert a claim * * * as otherwise provided by law"-- 5 along with that of subsection (3)(c)--"[t]he Legislative Assembly may provide by law for 6 further effectuation of the provisions of this subsection"-- makes clear that the legislature 7 is authorized to create procedures for a crime victim to pursue remedies in addition to 8 those procedures contained in subsection (3)(b). The legislature has "otherwise provided 9 by law," through ORS 147.515, that a crime victim may file a claim alleging a rights 10 violation in the trial court.2 The legislature chose not to make the right to seek relief in 11 the trial court contingent upon whether a defendant's case is "pending." Article I, section 12 42(3)(b), did not divest the trial court of jurisdiction to consider the victim's claim. We next turn to defendant's argument under ORS 147.515 (2009), which, at 13 14 the relevant time, provided, in relevant part: "A victim who wishes to allege a violation of a right granted to the victim in a criminal proceeding by section 42 or 43, Article I of the Oregon Constitution, shall inform the court within seven days of the date the victim knew or reasonably should have known of the facts supporting the allegation. The victim shall describe the facts supporting the allegation and propose a remedy." 15 16 17 18 19 20 2 We acknowledge that ORS 147.515(1) states that a victim "shall inform the court" without explicitly stating which court. It is nonetheless clear to us from reading the victims' rights statutory scheme that the "court" referred to is the trial court. Neither party argues differently. 4 1 ORS 147.515(1) (2009), amended by OR Laws 2011, ch 659, § 3.3 Defendant argues that 2 the city's claim was not timely filed within the period of time allowed by ORS 147.515 3 because the city should have known that its rights were violated when the original 4 judgment was entered. Defendant acknowledges that he did not preserve this argument in 5 the trial court, but now contends that the time restriction of ORS 147.515 is a 6 jurisdictional bar on a trial court's authority to consider a victim's claim that is filed 7 outside the statutory time period. See, e.g., State v. Belzons, 140 Or App 198, 201, 915 8 P2d 428 (1996), rev den, 324 Or 513 (1997) (stating that "a party cannot waive a 9 jurisdictional defect"). The state contends that the time provision of ORS 147.515(1) is 10 not jurisdictional. Neither we nor the Supreme Court have previously determined whether 11 12 timely filing under ORS 147.515(1) is a jurisdictional requirement for asserting a victim's 13 rights claim. We attempt to discern the meaning of the statute under the rules of PGE v. 14 Bureau of Labor and Industries, 317 Or 606, 610-12, 859 P2d 1143 (1993), as modified 15 by State v. Gaines, 346 Or 160, 206 P3d 1042 (2009). The purpose of our interpretation 16 is to discern the legislative intent behind the statute. Gaines, 346 Or at 171. That intent 17 is discerned by examining the text, context, and any helpful legislative history. Id. at 18 171-72. The text and context of the statute are primary to the analysis. Id. at 171. In support of his argument that ORS 147.515 operates as a jurisdictional 19 3 In 2011, the Legislative Assembly amended ORS 147.515 to provide that a victim shall have 30 days to inform the court of the facts supporting the allegation. That change does not affect our analysis or conclusion. 5 1 bar on a trial court's authority to hear untimely claims, defendant cites cases from two 2 contexts in which statutory time restrictions on filing operate as limits on a court's 3 jurisdiction to consider untimely claims: the appellate context and workers' 4 compensation. In the appellate context, statutory timeliness requirements are 5 jurisdictional because "appellate jurisdiction springs from statute and * * * except for 6 statutory authority this court and the Court of Appeals have no power to address the 7 merits of a claim." Southwest Forest Industries v. Anders, 299 Or 205, 216, 701 P2d 432 8 (1985). In the workers' compensation context, "[t]he benefits awarded under the workers' 9 compensation law are purely statutory, and a claimant must strictly follow the prescribed 10 procedures in order to recover under the law." Nelson v. SAIF, 43 Or App 155, 602 P2d 11 341, rev den 288 Or 173 (1979), appeal dismissed, 446 US 980, 100 S Ct 2958, 64 L Ed 12 2d 836 (1980). Citing only those two contexts, defendant advances a blanket proposition: 13 "Timeliness is a jurisdictional issue." 14 It is important to understand what function ORS 147.515 serves in the 15 context of crime victims' rights. The scope of ORS 147.500 to 147.550 is announced in 16 ORS 147.504(1), which states, in part: 17 18 19 20 21 22 "ORS 147.500 to 147.550 effectuate the provisions of sections 42 and 43, Article I of the Oregon Constitution, for violations that occur in criminal proceedings and do not provide a remedy for violations that occur in any other proceeding. A remedy for a violation of section 42 or 43, Article I of the Oregon Constitution, in any other proceeding may be enforced by writ of mandamus under ORS 34.105 to 34.240." 23 ORS 147.504(1). Thus, ORS 147.500 to 147.550 provide a procedural path for a crime 24 victim to pursue a remedy for the violation of the victim's constitutional rights. 6 1 Unlike both the statutorily created right of appeal and the statutorily created 2 right to recovery under the workers' compensation scheme, the right at issue in this case-- 3 the right of a crime victim to receive prompt restitution--is created by the Oregon 4 Constitution. That is, the right of a victim to receive compensation is not "purely 5 statutory" because the statutory scheme itself does not create the right of a victim to 6 receive prompt restitution. Moreover, the language of ORS 147.515 does not suggest that 7 the legislature intended the limitation period to impose a jurisdictional requirement. In 8 instances where the legislature intends to make timely filing a jurisdictional requirement, 9 the legislature has stated that intent clearly.4 See ORS 19.270(2) (timely filing of a notice 10 of appeal within the statutorily prescribed period is "jurisdictional and may not be waived 11 or extended"). In short, we find defendant's analogy to the workers' compensation and 12 appellate contexts unavailing. We conclude that the time window of ORS 147.515, when 13 read in context of the victims' rights scheme as a whole, does not operate as a restriction 14 on the trial court's jurisdictional authority to hear a victim's untimely claim. As noted, defendant acknowledges that he did not raise before the trial 15 16 court the argument that the City of Monmouth's claims were untimely. Because we have 4 Our conclusion is bolstered by the fact that the legislature explicitly listed several jurisdictional requirements in the victims' rights statutory scheme. In ORS 147.537, which addresses interlocutory appeals made by victims to the Supreme Court, the legislature listed two "requirements [that] are jurisdictional and may not be waived or extended." ORS 147.537(11)(a). One of those requirements is the timely filing of the notice of appeal. If the legislature intended to make timely filing under ORS 147.515 a jurisdictional requirement, one would expect it to employ similar language, especially given that ORS 147.537 was enacted in the same bill. See Or Laws 2009, ch 178, §§ 6, 14. 7 1 concluded that the time window of ORS 147.515 is not a jurisdictional restriction on the 2 trial court's authority to hear an untimely claim, we decline to address the merits of 3 defendant's unpreserved argument that the city's claim was untimely under that statute.5 4 See State v. Barboe, 253 Or App 367, 374, 290 P3d 833 (2012) (we generally will not 5 consider an unpreserved issue on appeal). That brings us to defendant's third argument, which is that the trial court 6 7 lacked authority to order that defendant pay additional restitution because the amended 8 judgment was entered outside the 90-day limit of ORS 137.106 (2011).6 ORS 137.106(1) 9 (2011) provides, in relevant part: 10 11 12 13 14 15 16 "When a person is convicted of a crime, or a violation as described in ORS 153.008, that has resulted in economic damages, the district attorney shall investigate and present to the court, prior to the time of sentencing, evidence of the nature and amount of the damages. If the court finds from the evidence presented that a victim suffered economic damages, in addition to any other sanction it may impose, the court shall include one of the following in the judgment: 17 18 19 "(a) A requirement that the defendant pay the victim restitution in a specific amount that equals the full amount of the victim's economic damages as determined by the court. 20 21 22 "(b) A requirement that the defendant pay the victim restitution, and that the specific amount of restitution will be established by a supplemental judgment based upon a determination made by the court within 90 days of 5 We do not review the trial court's imposition of additional restitution for plain error in regards to the fact-bound question of when the city "reasonably should have known of the facts" supporting its claim. See State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990) (stating that one of the prerequisites to plain error review is that the alleged error is one of law). 6 The 2013 Legislative Assembly recently enacted changes to ORS 137.106. House Bill (HB) 3277 (2013). Nothing in those changes affects our analysis or conclusion. 8 1 2 3 4 5 6 7 8 9 entry of the judgment. In the supplemental judgment, the court shall establish a specific amount of restitution that equals the full amount of the victim's economic damages as determined by the court. The court may extend the time within which the determination and supplemental judgment may be completed for good cause. The lien, priority of the lien and ability to enforce the specific amount of restitution established under this paragraph by a supplemental judgment relates back to the date of the original judgment that is supplemented." We conclude that the text of Article I, section 42, when read in conjunction 10 with State v. Barrett, 350 Or 390, 255 P3d 472 (2011), provides that the trial court had 11 the authority to impose the additional restitution at the time that it did, and that ORS 12 137.106 (2011) is not to the contrary. 13 Barrett involved a defendant who pleaded guilty to a stalking charge. The 14 victim had exercised her constitutional right to "be present at (and informed in advance 15 of) critical stages of the proceedings," but after learning that the defendant had pleaded 16 guilty and been sentenced without her knowledge, the victim filed a claim--under ORS 17 147.515--alleging a violation of her rights. Id. at 396 (quotation marks and brackets 18 omitted). The trial court concluded that the victim's rights had been violated, but further 19 concluded that Oregon law did not provide a remedy for such a violation. Id. at 396-97. 20 On appeal, the Supreme Court concluded that the trial court could 21 resentence the defendant as a remedy for the violation of a victim's constitutional rights. 22 Id. at 407. The court first noted that Article I, section 42(3)(a), states that every described 23 crime victim shall have "remedy by due course of law for violation of a right established 24 in this section." Id. at 403. That right is not unlimited, however, because the constitution 25 provides that, while a remedy may, in certain circumstances, include invalidating "a 9 1 ruling of a court," it may not include invalidating a "conviction or adjudication." Id. at 2 400, 400 n 6. The Barrett court concluded that a defendant's criminal sentencing is "a 3 ruling of a court," as opposed to a "conviction or adjudication." Id. at 403. With that 4 understanding, the court concluded that, "[i]f vacating defendant's sentence and ordering 5 a resentencing hearing is a legally permissible remedy, it is a 'remedy by due course of 6 law' and may invalidate the trial court's ruling and defendant's sentence." Id. In other 7 words, a trial court may resentence a defendant in order to remedy the violation of a 8 victim's rights, unless some source of law prohibits that course of action. 9 In this case, defendant argues that resentencing him was legally 10 impermissible because ORS 137.106 (2011) required the trial court either to impose 11 restitution in the initial entry of judgment or to issue a supplemental judgment imposing 12 restitution within 90 days of the entry of judgment. Defendant's argument misses the 13 mark. ORS 137.106 (2011), by its plain language, does not constrain the time in which a 14 trial court may resentence a defendant as a means of remedying a violation of a victim's 15 constitutional rights. Instead, the statute imposes time limits within which a trial court 16 must make an initial determination of the amount of restitution a defendant owes and 17 issue a judgment ordering the payment of restitution in the first instance. ORS 137.106 18 (2011) did not prevent the court from imposing the additional amount of restitution upon 19 defendant in these circumstances. 20 Affirmed. 10

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