State v. Shepherd

Summary

The Oregon Court of Appeals held that the trial court legally erred in concluding that the defendant's plea agreement prevented her from relying on the victim's written waiver to request less than the full amount of restitution. The court also held that the trial court plainly erred by including $14,660 in restitution for conduct charged in a case dismissed under the plea agreement, but declined to correct that error because the record supported an inference that defendant acknowledged the related economic damages. The supplemental restitution judgment was vacated and remanded for a new restitution hearing; the judgment was otherwise affirmed.

Holdings

1. The plea agreement left restitution open for the court to determine and did not prohibit Shepherd from submitting D's written waiver or asking the court to impose no restitution or less than the full amount of economic damages under ORS 137.106(2)(b). The trial court therefore erred by concluding that those actions breached the plea agreement and by conditioning consideration of the waiver on open sentencing.
2. The court declined to reach the merits of Shepherd's challenge to the method of calculating economic damages because the argument was not preserved and Shepherd did not request plain-error review.
3. The trial court plainly erred by imposing $14,660 in restitution for conduct underlying charges that were dismissed as part of the plea agreement because Shepherd was not convicted of, and did not admit on the record to, that conduct. The appellate court nevertheless declined to exercise its discretion to correct that plain error.

Questions Presented

1. Whether the plea agreement prohibited Shepherd from relying on D's written waiver and requesting that the court impose less than the full amount of restitution under ORS 137.106(2)(b).
2. Whether the trial court's calculation of economic damages was erroneous.
3. Whether the trial court plainly erred by imposing $14,660 in restitution for conduct underlying charges dismissed as part of the plea agreement.

Disposition

reversed_and_remanded