State v. Moreno-Hernandez
State v. Moreno-Hernandez
Opinion of the Court
*469Defendant appeals a judgment of conviction for two counts of second-degree rape, ORS 163.365 (Counts 1 and 2), two counts of second-degree sodomy, ORS 163.395 (Counts 3 and 4), two counts of second-degree unlawful sexual penetration, ORS 163.408 (Counts 5 and 6), two counts of first-degree sexual abuse, ORS 163.427 (Counts 7 and 8), one count of unlawful delivery of methamphetamine to a minor, ORS 475.890(3) (Count 10), and four counts of compelling prostitution, ORS 167.017 (Counts 13, 16-18). Defendant assigns error to the trial court's imposition of three $50,000 compensatory fines on Counts 16 through 18. Defendant also advances as unpreserved contention that the court erred by imposing $9,290 in court-appointed attorney fees. We conclude that the trial court erred by imposing both the compensatory fines and the attorney fees, and we reverse those portions of the judgment.
In the fall of 2012, defendant met S, a 13-year-old girl who had recently run away from home, outside of his Beaverton apartment. He allowed her to live with him for several weeks. During that time, defendant provided S with drugs, raped and sexually abused her, and induced her to engage in prostitution.
In July of the following year, the Department of Human Services (DHS), S's legal guardian at the time, sent S to Mingus Mountain, a facility in Arizona for girls who are at risk behaviorally and emotionally and for whom other treatment had not been effective. She stayed there for nearly a year. During a counseling session a few months *1091after she arrived there, S first alerted authorities to defendant's crimes.
Defendant was eventually charged with and convicted of the crimes described above. During trial, S's former DHS caseworker testified that S's treatment at Mingus Mountain had been covered by her Oregon Health Plan (OHP) insurance, which all juveniles automatically receive while they are in the temporary custody of DHS.
At sentencing, in addition to imposing a term of 370 months' imprisonment, the trial court also expressed interest in imposing compensatory fines under ORS 137.101. In *470accordance with that statute, the court indicated that the state must prove economic damages to the victim before the court could impose a compensatory fine. The state presented a letter to the court from a DHS worker that stated that the Mingus Mountain treatment had cost roughly $168,000. In the state's view, the letter provided the court with evidence that was sufficient to prove economic damages for a compensatory fine. Defendant objected to the compensatory fine, arguing, in part, that S did not suffer any economic damages.
The court imposed a punitive fine of $200 on each of Counts 1 through 10, 13, and 16 through 18. It also imposed three $50,000 compensatory fines, one for each of three convictions for compelling prostitution, Counts 16 through 18, which required defendant to "Pay a compensatory fine to victim: [S's name], c/o DHS." Additionally, the trial court stated that defendant may be able to pay the compensatory fines imposed because defendant was "about 28 years old now, I think. And I'm going to find that he appears to be healthy. Able to maintain some type of employment[.]" The court then immediately turned to a discussion about court-appointed attorney fees. Without stating that it was relying on the same facts to determine that defendant could pay the attorney fees, or making any findings explicitly for the purpose of imposing the fees, the trial court imposed $9,290 in court-appointed attorney fees on defendant. Defendant did not object. During the trial, defendant had testified that he had had little income even though he worked sporadically doing construction work, sold food at a farmer's market, and provided maintenance work at his apartment complex in exchange for a discount on rent.
On appeal, defendant assigns error to the court's imposition of the three compensatory fines, arguing that the court erred for three reasons. First, defendant argues that the prerequisites for imposing a compensatory fine were not met, specifically that S was not a victim who has suffered economic damages, and, thus, a compensatory fine payable to her cannot be imposed.
In deciding whether the trial court erred when it imposed the three compensatory fines, we find defendant's third argument dispositive. In sum, we agree with defendant that the trial court plainly erred by ordering defendant to pay three $50,000 compensatory fines, and we exercise our discretion to correct the error. In addition, because the record is clear that the trial court could not impose any compensatory fine payable to S, we reverse as to those parts of the judgment.
As we explained in State v. Moore ,
*1092Thus, it is plain error for a trial court to impose a compensatory fine in addition to a punitive fine imposed under ORS 161.625(1). Id . at 35,
The compensatory fine statute, ORS 137.101(1), provides:
"Whenever the court imposes a fine as penalty for the commission of a crime resulting in injury for which the person injured by the act constituting the crime has a remedy by civil action, * * * the court may order that the defendant pay any portion of the fine separately to the clerk of the court as compensatory fines in the case. The clerk shall pay over to the injured victim or victims, as directed in the court's order, moneys paid to the court as compensatory fines under this subsection. This section shall be liberally construed in favor of victims."
ORS 137.101 does not authorize the imposition of a separate fine.
"[V]ictim" and "economic damages" are statutorily defined. A "victim," as it is used in ORS 137.101, is defined in relevant part as follows:
"(a) The person or decedent against whom the defendant committed the criminal offense, if the court determines *473that the person or decedent has suffered or did suffer economic damages as a result of the offense.
"(d) An insurance carrier, if it has expended moneys on behalf of a victim described in paragraph (a) of this subsection."
ORS 137.103(4).
In this case, the record demonstrates that S has not suffered any economic damages for which she could recover in a civil action. The state relies on State v. Haines ,
In Haines , the trial court imposed a $1,000 compensatory fine on the defendant, who had been convicted of attempted first-degree sexual abuse of a juvenile, payable to the victim's parents.
Here, by contrast, defendant raised below the issue of whether S is a person who is entitled to receive a compensatory fine and, in particular, raised the issue of whether there was sufficient evidence to support a finding that S became subject to an economic obligation as a result of her treatment at Mingus Mountain. In this context, where the issue was raised below, whether a different party, such as an insurer, might be eligible to receive a compensatory fine does not bear on the question before us, as it did in the plain error context of Haines . The only pertinent consideration is whether there is evidence permitting a finding that S became liable for the costs of her care at Mingus Mountain.
The record contains no evidence that S ever incurred any objectively verifiable economic obligation for the treatment and, therefore, ever suffered any economic damages as a result of defendant's crimes. The state produced no evidence *475from which a court could infer that S, a child who was under the guardianship of DHS, could have been liable for the costs of the Mingus Mountain treatment. Consequently, the trial court cannot impose a compensatory fine payable to S, and the circumstances are not such that we are required to remand for resentencing. See ORS 138.222(5)(a)
We next address defendant's contention that the trial court erred by imposing $9,290 in court-appointed attorney fees because its determination that defendant is or may be able to pay the costs was not supported by the record. See State v. Pendergrapht ,
The state must prove that a defendant is or may be able to pay costs, and it is plain error to impose such costs in the absence of evidence of a defendant's ability to pay.
*476State v. Coverstone ,
In Mendoza , we concluded that the evidence elicited by the trial court "did not allow a nonspeculative, objective assessment of defendant's present or future capacity to pay [attorney] fees."
And in State v. Mejia-Espinoza ,
In this case, we conclude that the trial court plainly erred when it imposed court-*1095appointed attorney fees because the record does not contain evidence that permits an objective, nonspeculative assessment of defendant's ability to pay the attorney fees. The trial court appears to have relied on the facts that it found to determine that defendant could pay the compensatory fines the court had imposed. Those facts-that defendant appeared healthy at the time of sentencing and had worked in the past-do not allow a nonspeculative, objective assessment of defendant's present or future capacity to pay fees. The record shows that defendant had a history of odd jobs that relied on defendant's physical labor and for which he made little income. There is no evidence in the record that defendant would have employment waiting for him after his release or that he had an education or employment history that would in any plausible way help him gain employment at age 60 after having spent over 30 years in prison. Moreover, the fact that defendant appeared to be healthy at the time he was sentenced to over 30 years of imprisonment is not evidence of any plausible prospect of employment far in defendant's future. The court's assessment of defendant's ability to pay the fees was not based on concrete facts that can support a reasonable inference that defendant had or may have the ability to pay $9,290 in court-appointed attorney fees when he is released from prison.
When reviewing for plain error, we must determine whether it is appropriate for us to exercise our discretion to correct the error. Coverstone ,
Portion of judgment requiring defendant to pay compensatory fines and attorney fees reversed; otherwise affirmed.
Defendant argues in the alternative that the trial court's order is ambiguous as to whether the trial court intended S or DHS to receive the compensatory fine. The state contends that the order is unambiguous and that the only reasonable reading of the order's statement that defendant "Pay a compensatory fine to victim: [S's name] c/o DHS" is that the trial court intended to have the compensatory fine paid to S only. We agree with the state that the order is not ambiguous.
In Moore , because the record was unclear, we remanded for the parties and court to answer whether the court's intended recipient of the compensatory fine was a valid recipient under the compensatory fine statute.
ORS 161.625(1) authorizes sentencing courts to impose fines on persons convicted of felony crimes.
ORS 137.103(4) has been amended since defendant committed his crimes; however, because those amendments do not affect our analysis, we refer to the current version of the statute in this opinion.
Former ORS 138.222 (2013) was repealed in 2017 by Senate Bill (SB) 896. Or. Laws 2017, ch. 529, § 26 . Because the judgment in this case was entered before the January 1, 2018, effective date of SB 896, its provisions do not apply. Or. Laws 2017, ch. 529, § 28 (providing that SB 896 applies "on appeal from a judgment or order entered by the trial court on or after the effective date of this 2017 Act").
Reference
- Full Case Name
- STATE of Oregon, Plaintiff-Respondent v. Victor C. MORENO-HERNANDEZ
- Cited By
- 6 cases
- Status
- Published