Oregon Appellate Court Declines to Correct Unpreserved Sentencing Error Related to Restitution
In May 2013, the Oregon Court of Appeals agreed that a trial court had committed plain error when it recommended that a defendant pay restitution in an amount to be determined by the Board of Parole and Post-Prison Supervision (Board). The appellate court refused to correct the error, however, because the defendant did not object before the trial court.
Ramon E. Coronado was convicted of three assault charges. At a January 25, 2010 sentencing hearing on two of the convictions, the state requested restitution of $5,931.79 to the victim and $38,676.90 to the victim’s insurance company. Coronado’s attorney said “No objection.” During sentencing on the remaining conviction the following month, the court stated, “I’m going to recommend ... that [defendant] make restitution to the victim in this case in an amount to be determined by the [Board].”
Despite having failed to object to the second restitution order, Coronado argued that the Court of Appeals should exercise its discretion to review the order as plain error under Oregon Rule of Appellate Procedure 5.45(1).
The appellate court recognized that Coronado “correctly points out – and the state concedes – that no statute authorizes the court to recommend that [the Board] determine the amount of restitution.”
The Court of Appeals declined to correct the error, however, finding that Coronado had failed to object before the trial court, which would have made this “an easy error for the court to fix.” That is, if he “had brought it to the court’s attention, the court could have imposed the restitution instead of recommending [the Board] do so. Now, defendant asks this court not to remand to correct the error, but to strike the portion of the judgment relating to restitution.” The appellate court refused to do so, as “that could result in a windfall” for Coronado by vacating any restitution as to his third assault charge. See: State v. Coronado, 256 Ore. App. 780, 302 P.3d 477 (Or. Ct. App. 2013).
However, the Court of Appeals’ refusal to correct the error may still result in a “windfall” for Coronado, given that the Board only has the power bestowed upon it by the legislature. As that authority does not include the power to impose restitution in criminal cases, any order from the Board purporting to do so presumably would be ultra vires and thus invalid.