The opinion
122
Argued and submitted February 13, 2019; reversed and remanded for
resentencing, otherwise affirmed July 1, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOHN PATRICK LYNCH,
Defendant-Appellant.
Multnomah County Circuit Court
16CR24443; A165070
469 P3d 800
Defendant stole a car and attempted to elude police. Ultimately, he crashed
into and damaged a stairwell and guardrail owned by the City of Portland.
This led to a number of charges against defendant, which he elected to resolve
through a plea bargain. Under the plea agreement, the state agreed, among
other things, to recommend restitution within 90 days. Within 90 days, the
state sought, and the trial court awarded, restitution for the damaged car. Then,
nearly two months after the expiration of the 90-day period, the state sought, and
the court awarded, additional restitution to the city for damage to the stairwell
and guardrail. On appeal, defendant contends that the court erred in awarding
restitution to the city because he has a due process right to enforce the 90-day
period specified in the plea agreement. The state counters that the 90-day limit
is unenforceable because it violates the city’s right under Article I, section 42,
of the Oregon Constitution to receive prompt restitution from defendant for the
damage he caused. Held: The trial court erred in awarding restitution to the city
at the request of the state in contravention of the terms of the plea agreement.
Defendants have a due process right to enforce against the state the material
terms of their plea agreements, and the state violated a term of defendant’s plea
agreement by seeking restitution outside of the 90-day period. Enforcing the plea
agreement against the state does not violate any right of the city under Article I,
section 42, because the city does not have a right to have the state seek restitu-
tion on its behalf and may seek restitution on its own accord.
Reversed and remanded for resentencing; otherwise affirmed.
Henry Kantor, Senior Judge.
David Sherbo-Huggins, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
Greg Rios, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Cite as 305 Or App 122 (2020) 123
Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
LAGESEN, P. J.
Reversed and remanded for resentencing; otherwise
affirmed.
James, J., dissenting.
124 State v. Lynch
LAGESEN, P. J.
Defendant stole a car and attempted to elude police.
Ultimately, he crashed into a stairwell and guardrail owned
by the City of Portland, damaging them. That led to a num-
ber of charges against defendant, which he elected to resolve
through a plea bargain. Under the plea agreement, the state
agreed, among other things, to recommend that the par-
ties “stipulate to liability for restitution (amount TBD w/in
90 days).” Within 90 days, the state sought, and the trial
court awarded, $22,440.52 in restitution to the car’s own-
er’s insurer. Then, a few months after the expiration of the
90-day period, the state sought, and the court awarded, an
additional $29,967.44 to the city for damage to the stairwell
and guardrail. Defendant contends that the court’s award
of restitution to the city was in error, in view of the 90-day
period specified in the plea agreement. We agree and reverse
and remand.
As the issues have been framed for us by the parties,
whether the trial court erred in awarding restitution to the
city outside the 90-day period specified in defendant’s plea
agreement presents a question of law, making our review for
legal error.
The relevant facts are in the main procedural and
not disputed. Defendant stole a car that had a shotgun in
the back seat. While driving around downtown Portland,
defendant noticed a police car pull in behind him and, in
his words, “freaked out and attempted to elude.” He crashed
the stolen car, damaging a stairwell and a guardrail, which
were owned by the City of Portland.
For that conduct, a grand jury indicted defendant
for seven crimes, including one count of felon in possession of
a firearm, ORS 166.270, one count of unauthorized use of a
vehicle, ORS 164.135, and one count of fleeing or attempting
to elude, ORS 811.540. Pursuant to a plea agreement, defen-
dant pleaded guilty to those three crimes. Under the terms of
the parties’ plea agreement, the state agreed to recommend,
as part of the sentence on Count 4, that the parties “stipu-
late to liability for restitution (amount TBD w/in 90 days).”
The trial court accepted the recommendations in the plea
Cite as 305 Or App 122 (2020) 125
agreement, the other four charges were dismissed under the
terms of the plea agreement, and, within the 90-day period
specified in the agreement, the restitution amount for the
victim’s car was determined to be $22,440.52. Following
that determination, the trial court entered a supplemental
judgment that required defendant to pay that amount to the
victim’s insurance company.
A few months after the expiration of the 90-day
period, the state moved the court to award restitution for
the city’s damaged stairwell and guardrail. It argued that
Article I, section 42, of the Oregon Constitution allowed it
to seek restitution outside the 90-day period to which it had
agreed as part of the plea bargain. The state explained that
the district attorney’s office had neglected to give the city
notice that it needed to give the district attorney’s office
the information it needed to request restitution within
the 90-day deadline; therefore, the city was not at fault.
Defendant countered that such an untimely request for res-
titution conflicted with defendant’s rights under the state
and federal constitutions. Defendant observed further that
the city was not without a remedy because it could bring a
civil suit for the damages.
The trial court held a hearing on the state’s
motion, at which the state sought $51,555.94 in damages
on behalf of the city, a figure that included the overhead
costs of repairs. Without overhead, the cost of repairs was
$29,967.44. The court agreed with defendant that restitu-
tion should have been requested sooner, but it nevertheless
concluded that the city had a constitutional right to reim-
bursement under Article I, section 42. The court awarded
the city only $29,967.44 because it did not believe that the
state had proven the reasonableness of the overhead costs of
repairs.
Defendant appeals, assigning error to the trial
court’s restitutionary award to the city for $29,967.44.
He argues that the state cannot seek restitution for a vic-
tim under the victims’ rights amendment to the Oregon
Constitution if that action is inconsistent with the terms of
its plea agreement with the defendant. Specifically, defen-
dant argues that he has a due process right to notice of the
126 State v. Lynch
consequences of his plea bargain and enforcement of its
terms. The state counters that the award for restitution was
proper because defendant and the state had no authority to
contract away the city’s constitutional right to restitution,
and any reading of the plea agreement precluding recovery
for the city would be unenforceable as a matter of public
policy.
Defendant is correct that he has a due-process-
protected interest in the terms of his plea agreement,
including the time limitation on when the amount of resti-
tution for which he agreed to stipulate he was liable would
be determined, and the state’s arguments supply no basis
for concluding otherwise. Defendant entered into a plea
agreement that states unambiguously that, in exchange for
defendant’s pleas, the state agreed to recommend, as part
of the sentence on Count 4, that the parties “stipulate to
liability for restitution (amount TBD w/in 90 days)”—a rec-
ommendation that the trial court ultimately accepted. The
Due Process Clause of the Fourteenth Amendment to the
United States Constitution gives defendant an enforceable
right in the benefit of that bargain. Santobello v. New York,
404 US 257, 262, 92 S Ct 495, 30 L Ed 2d 427 (1971); State
v. King, 361 Or 646, 667, 398 P3d 336 (2017). That is, “when
a plea rests in any significant degree on a promise or agree-
ment of the prosecutor, so that it can be said to be part of the
inducement or consideration, such a promise must be ful-
filled.” King, 361 Or at 667. As the Supreme Court explained
in King, that is because a criminal defendant relinquishes
many other important constitutional rights when resolving
a case by plea:
“[A] criminal defendant’s rights—not ordinarily present in
a commercial contract setting—must inform the analysis
and implementation of a plea agreement. When, as here,
a criminal defendant enters pleas of guilty and no contest
to charges in accordance with a plea agreement and is con-
victed, his or her pleas implicate state constitutional rights,
see Article I, sections 11 and 12, of the Oregon Constitution,
and rights under the Fifth and Sixth Amendments to the
federal constitution. A criminal defendant entering such
pleas waives the constitutional rights to a jury trial, to
confront accusers, and to assert the privilege against
Cite as 305 Or App 122 (2020) 127
compulsory self-incrimination. And defendants waiving
their constitutional rights must understand the rights
being waived and must do so free from coercion.”
Id. at 666-67 (internal citations omitted). That relinquish-
ment of constitutional rights makes it fundamentally unfair
to deprive a criminal defendant of the benefit of the bar-
gain struck, giving rise to a due process right to enforce
the plea bargain or seek another appropriate remedy. See
id. at 667 (“[W]hen a defendant agrees to a plea bargain,
the Government takes on certain obligations[,] and if they
are not met, the defendant is entitled to seek a remedy[.]”
(Quoting Puckett v. United States, 556 US 129, 137, 129 S Ct
1423, 173 L Ed 2d 266 (2009) (second bracket in original;
internal quotation marks omitted).)).
Opposing this conclusion, the state first argues
that the key phrase in defendant’s plea agreement, provid-
ing that he will “stipulate to liability for restitution (amount
TBD w/in 90 days),” is ambiguous. In particular, the state
argues that the term is ambiguous because, in the state’s
view, the phrase refers to ORS 137.106(1)(a), which allows a
trial court to extend the 90-day statutory deadline for resti-
tution if there is “good cause” to do so. We see no ambiguity
to the specification that the amount of restitution was “TBD
w/in 90 days.” Those words are plain. But even if the state
were right that the phrase somehow incorporated the “good
cause” exception contained in the statute, we do not see how
that assists the state in this case because the trial court
did not find “good cause” for awarding restitution beyond
the 90-day statutory limit. Instead, the court stated specifi-
cally that, “[u]nder the statute, if this was purely a statutory
issue, I would deny the request for a hearing.”
The state also points out that a criminal defen-
dant’s due process right to enforce a plea agreement extends
only to enforcement of material terms. But a time limitation
on determining a criminal defendant’s liability for restitu-
tion can hardly be said to be immaterial. On its face, the
provision provides important finality regarding defendant’s
financial obligations stemming from this criminal con-
duct. It is not a term that is susceptible to characterization
as an insubstantial or technical part of the bargain that
128 State v. Lynch
defendant has struck. Beyond that, the state’s breach of the
term also cannot be said to be minor or technical. See, e.g.,
United States v. Diaz-Jimenez, 622 F3d 692, 694 (7th Cir
2010) (criminal defendant may not be entitled to a remedy for
minor, technical breaches of a plea agreement). The state’s
restitution request was not untimely by a matter of minutes
or mere days; it came nearly two months past the deadline.
Additionally, to the extent that the materiality of the term
might be debatable, we tend to think that the state, as the
party seeking to avoid the agreement that it made, should
bear the burden of proving that the term was not material
to the parties’ agreement—at least where, as here, the term
is one that, on its face, appears to be material.
The state argues further that the time limitation on
seeking restitution violates public policy and is unenforce-
able for that reason. We again disagree. For one, it largely
tracks the policy expressed in the terms of ORS 137.106,
which, as noted earlier, also imposes a similar time limita-
tion on the state’s ability to seek restitution. Additionally,
consistent with the requirements of due process, Oregon
courts long have recognized a policy of honoring and enforc-
ing plea agreements. See, e.g., Stone v. OSP, 39 Or App 473,
476, 592 P2d 1044 (1979) (“Failure to scrupulously observe a
plea bargain is cause for post-conviction relief[.]”). Pertinent
to this case, we have held that a criminal defendant is enti-
tled to a remedy where, as here, the state seeks an award
of restitution in a manner that conflicts with the terms of a
plea agreement. State v. Kendrick, 285 Or App 328, 395 P3d
969 (2017); State v. Thomas, 281 Or App 685, 386 P3d 218
(2016).
Our decision in Kendrick is particularly germane.
There, the defendant sought specific performance of a plea
agreement that did not contemplate restitution. 285 Or App
at 329. After the trial court gave the defendant the option
to withdraw his plea and defendant declined, the court
ordered restitution. Id. On appeal, the state conceded that
the court erred because there was “no evidence in the record
that restitution was part of defendant’s plea agreement.” Id.
We accepted the state’s concession, reasoning that, “[w]hen
a plea agreement contains specific sentencing terms that do
Cite as 305 Or App 122 (2020) 129
not contemplate restitution, the state breaches that agree-
ment by seeking restitution.” Id. at 330 (citing Thomas,
281 Or App at 694). We concluded further that the state’s
breach entitled the defendant to specific performance of the
agreement—that is, a hearing at which the state did not
request restitution. Id. That we have held enforceable a plea
agreement under which the state agreed to forgo requesting
restitution completely makes it a struggle to conclude that
an agreement that merely sets a time limitation for seeking
restitution should be deemed unenforceable as violative of
public policy.
Finally, the state also posits that Article I, section
42(1)(d), bars the enforcement of defendant’s plea agree-
ment, at least to the extent that it poses a time limitation
on seeking restitution. That provision grants victims “[t]he
right to receive prompt restitution from the convicted crimi-
nal who caused the victim’s loss or injury.” The state argues
that, to the extent the plea agreement’s terms would pre-
clude the city from obtaining restitution, it is an illegal con-
tract in view of Article I, section 42(1)(d). Alternatively, the
state contends that, even if due process entitles defendant to
a remedy for the state’s breach of the plea agreement, “the
proper remedy would be to allow defendant to withdraw his
plea, not ordering specific performance of the plea terms,
because, as discussed, specific performance would violate
public policy—i.e., the city’s right to obtain prompt restitu-
tion under the Oregon Constitution.”
As for the state’s argument that the time limit on
restitution contained in the agreement is “illegal” to the
extent that it would restrict the city’s ability to seek resti-
tution outside that time limit, any right the city had under
Article I, section 42(1)(d), was a qualified one, limited by
defendant’s rights under the federal constitution:
“Nothing in this section reduces a criminal defendant’s
rights under the Constitution of the United States. Except as
otherwise specifically provided, this section supersedes any
conflicting section of this Constitution. Nothing in this sec-
tion is intended to create any cause of action for compensa-
tion or damages nor may this section be used to invalidate
an accusatory instrument, conviction or adjudication or
otherwise terminate any criminal or juvenile delinquency
130 State v. Lynch
proceedings at any point after the case is commenced or on
appeal.”
Or Const, Art I, § 42(2) (emphasis added). Thus, a victim
may not be granted restitution if that would result in a
reduction of the criminal defendant’s rights afforded by the
federal constitution. See State v. Barrett, 350 Or 390, 404
n 9, 255 P3d 472 (2011) (“Article I, section 42, makes it clear
that only federal constitutional rights are preserved invio-
late[.]”). Here, as explained above, even if the term at issue
might conflict with Article I, section 42(1)(d), in some cir-
cumstances, the resolution of the charges against defendant
under the terms of the plea bargain gave defendant a pro-
tected right under the federal constitution to the benefit of
his bargain. Under the plain terms of Article I, section 42(2)
(and likely the Supremacy Clause as well), that federal con-
stitutional right supersedes any conflicting right or interest
under the terms of Article I, section 42(2), itself.
Beyond that, and perhaps more significantly, the
fact that the state may have agreed with defendant to seek
restitution within a 90-day period does not mean that the
state has contracted away the rights of the city (or any
other victim). For that reason, the state’s agreement with
defendant that the restitution to which defendant had stip-
ulated would be determined within 90 days—a period that
comports with the time period established by the legisla-
ture in ORS 137.106 for the district attorney to discharge
the obligation of investigating and presenting evidence of
economic damages—does not mean that the state has pre-
cluded victims, like the city, from seeking restitution out-
side of that time period if the district attorney’s investi-
gation comes up short, as it did here. And contrary to the
dissenting opinion’s suggestion, the right to restitution pro-
tected by Article I, section 42, does not encompass a right
to have a prosecuting attorney assist in the recovery of res-
titution. Rather, the participation of the prosecuting attor-
ney is discretionary: “Upon the victim’s request, the pros-
ecuting attorney, in the attorney’s discretion, may assert
and enforce a right established in this section.” Article I,
section 42(4). Thus, where the state’s plea agreement with
a defendant provides that restitution will be determined
within the 90-day time period contemplated by statute, and
Cite as 305 Or App 122 (2020) 131
a victim seeks restitution outside of that window, a prosecu-
tor, to avoid breaching the agreement, may need to decline
to press the claim asserted by the victim. But that does
not mean that a victim, acting on the victim’s own accord,
will be barred from obtaining restitution if the victim can
establish the claim in accordance with the constitution and
its implementing provisions.
As for remedy, ordinarily two options are available
to a defendant when the state has breached a plea agree-
ment: (1) specific performance of the agreement or (2) with-
drawal of the plea and restoration of “the [s]tatus quo ante.”
Stewart v. Cupp, 12 Or App 167, 173, 506 P2d 503 (1973); see
also Thomas, 281 Or App at 694-95. What remedy is appro-
priate depends on the particular circumstances of a given
case. Stewart, 12 Or App at 173.
Here, defendant seeks specific performance—
something that would preclude the state from seeking res-
titution on behalf of the city—while the state contends that
plea withdrawal is the appropriate remedy. Under the cir-
cumstances, we agree that specific performance, rather
than permitting plea withdrawal and returning the matter
to the status quo ante, is appropriate. That is primarily for
two reasons. First, the city is not the only victim of defen-
dant’s criminal conduct in this case. That means return-
ing the case to its start will disrupt the finality afforded to
the other victims by defendant’s plea agreement, requiring,
for example, that one victim refund any amounts paid for
the damage to the car. Second, again, holding the state to
its agreement that it would seek restitution within 90 days
does not mean that the city may not, on its own accord and
without the assistance of the state, seek its own remedies
for the damage defendant caused it, including any remedies
afforded to it under Article I, section 42, and the implement-
ing statutes.
For the above reasons, we conclude that the trial
court erred in declining to enforce defendant’s plea agree-
ment and in entering the untimely award of restitution
requested by the state in favor of the city. We therefore
reverse and remand for the trial court to strike that part of
the restitution award and for resentencing.
132 State v. Lynch
Reversed and remanded for resentencing; other-
wise affirmed.
JAMES, J., dissenting.
The Due Process Clause of the Fourteenth
Amendment does not prohibit a trial court from granting
restitution to a crime victim who asserts a valid claim for
a violation of their rights under Article I, section 42, of
the Oregon Constitution, regardless of the terms of the
plea agreement between the state and the defendant. The
victim’s right to criminal restitution is their right, inde-
pendent of the wishes of the defendant or the prosecutor.
A plea agreement between a defendant and the state can-
not extinguish the rights of a third party not privy to the
agreement. I conclude that the trial court had authority to
impose restitution beyond the time limit specified in the
plea agreement as a remedy for a valid claim of a violation
of a victim’s Article I, section 42 rights, and the state did
not breach the plea agreement by raising that claim to the
court. Because I would hold that the trial court’s judgment
should be affirmed, I respectfully dissent.
Because the procedural background of this case is
relevant to my analytical approach, I relay it in some detail.
As part of plea negotiations, defendant and the state agreed
that restitution was “TBD within 90 days.” On July 19, 2016,
the court accepted defendant’s guilty plea and imposed
sentence, stating, “The State has [leave] to reopen if they
want to seek restitution.” On October 4, 2016, pursuant to
defendant’s stipulation, the court entered a Supplemental
Uniform Criminal Judgment Temporary Sentencing Order
imposing $24,440.52 in restitution on Count 2 to “Victim:
USAA as subrogee of [C.V.].”
According to later representations by the prosecu-
tor in the state’s motion to show cause filed on February 1,
2017, the veracity of which are not contested by any party,
“[o]n Dec. 5, 2016, Carol Timper with the City of Portland
contacted the Multnomah County District Attorney’s
Office to inquire about restitution in this case related to
the city-owned guardrail and staircase damaged by the
pickup the defendant was driving when it crashed.” The
Cite as 305 Or App 122 (2020) 133
state discovered that “due to error, the Multnomah County
District Attorney’s Office never entered the City of Portland
as a ‘victim’ in this case in the database it relies upon to
issue criminal cases and track restitution requests[.]” For
that reason, the state explained, “[T]he City of Portland,
through Ms. Timper, never received notice regarding its
rights and responsibilities to claim restitution,” and conse-
quently, “the City of Portland did not file a timely request
for restitution.”
Also in its February 1, 2017, motion, the state
requested a hearing for defendant to show cause why he
should not be “ordered to pay $51,555.94 in economic dam-
ages to victim the City of Portland based on a violation of the
victim’s constitutional and statutory rights.” On February 23,
2017, the court granted the state’s request for a hearing.
On April 26, 2017, the court held a restitution hear-
ing at which Timper testified that she receives police reports
whenever city property is damaged and works with the city
bureau that owns the asset to compile the costs of repair.
Timper became aware of the damage to the city’s property
within a week of the accident. Because there were crimi-
nal charges associated with the damage, she knew the city
would need to file a restitution claim. But she was waiting
for the district attorney to send the city a restitution request,
which did not occur. She testified that the costs associated
with the damage caused by defendant were $51,555.94. The
hearing was continued until May 3, 2017, at which time
Douglas Hight, another city employee, testified that he had
received an email from Timper on May 2, 2016, requesting
an estimate of the damage and stating “restitution is our
best option.”
After hearing argument from both sides, the court
issued an amended supplemental judgment for an addi-
tional $29,967.44 in restitution to “City of Portland—Risk
Management.”
Turning now to the constitutional and statutory
landscape that governs this case. In 1999, Oregon voters
amended the Oregon Constitution to create a series of con-
stitutional rights possessed by a victim of a crime during a
134 State v. Lynch
criminal prosecution. Article I, section 42, provides, as rele-
vant here:
“(1) To preserve and protect the right of crime victims
to justice, to ensure crime victims a meaningful role in the
criminal and juvenile justice systems, to accord crime vic-
tims due dignity and respect and to ensure that criminal
and juvenile court delinquency proceedings are conducted
to seek the truth as to the defendant’s innocence or guilt,
and also to ensure that a fair balance is struck between
the rights of crime victims and the rights of criminal defen-
dants in the course and conduct of criminal and juvenile
court delinquency proceedings, the following rights are
hereby granted to victims in all prosecutions for crimes
and in juvenile court delinquency proceedings:
“(a) The right to be present at and, upon specific
request, to be informed in advance of any critical stage
of the proceedings held in open court when the defendant
will be present, and to be heard at the pretrial release
hearing and the sentencing or juvenile court delinquency
disposition;
“* * * * *
“(d) The right to receive prompt restitution from the
convicted criminal who caused the victim’s loss or injury.”
At the outset, it is important to note that restitu-
tion is a component of sentencing. As the Oregon Supreme
Court has noted, “restitution is a sentencing device.” State
v. Dillon, 292 Or 172, 178, 637 P2d 602 (1981). That a victim
may have a civil cause of action is no substitute for criminal
restitution because the two serve different ends.
“Because of the nature of restitution, the statutory scheme
presents a peculiar blend of both civil and criminal law
concepts, but it is not a form of civil liability and recovery.
The theory of restitution is penological: It is intended to
serve rehabilitative and deterrent purposes by causing a
defendant to appreciate the relationship between his crim-
inal activity and the damage suffered by the victim. To
make this relationship evident to the defendant, the per-
missible amount of restitution is measured by the injury to
the victim.”
Dillon, 292 Or at 178-79. Thus, a victim’s right to restitu-
tion is not merely a right to be made economically whole, it
Cite as 305 Or App 122 (2020) 135
is a right to have that economic compensation imposed in
the criminal proceeding itself in furtherance of “protection
of society, personal responsibility, accountability for one’s
actions and reformation,” which are the foundational princi-
ples of criminal law in Oregon pursuant to Article I, section
15, of the Oregon Constitution.
Article I, section 42, authorizes the legislature to
enact laws to effectuate constitutional victim rights. Or
Const, Art I, § 42(3)(c) (“The Legislative Assembly may pro-
vide by law for further effectuation of the provisions of this
subsection * * *.”). The legislature did so, and of particular
relevance to this case, provided the statutory framework in
ORS 137.106 for the imposition of restitution as a component
of a sentence.
First, ORS 137.106 creates a mandatory obligation
by the prosecutor to investigate and present evidence in sup-
port of restitution whenever the crime has resulted in eco-
nomic damage:
“(1)(a) When a person is convicted of a crime, or a vio-
lation as described in ORS 153.008 [(Violations described)],
that has resulted in economic damages, the district attor-
ney shall investigate and present to the court, at the time
of sentencing or within 90 days after entry of the judgment,
evidence of the nature and amount of the damages. The
court may extend the time by which the presentation must
be made for good cause.”
(Emphasis added.)
Nothing in the statutory scheme prevents the vic-
tim from asserting their Article I, section 42 right to res-
titution through additional means, either on their own, or
through counsel. Thus, the district attorney is not the only
person who is authorized to assert an Article I, section 42
right to restitution on behalf of the victim. Rather, the dis-
trict attorney is the only person who is mandated to do so,
within a particular time.
Second, the legislature has required that a court
impose restitution.
“If the court finds from the evidence presented that a vic-
tim suffered economic damages, in addition to any other
136 State v. Lynch
sanction it may impose, the court shall enter a judgment
or supplemental judgment requiring that the defendant
pay the victim restitution in a specific amount that equals
the full amount of the victim’s economic damages as deter-
mined by the court.”
ORS 137.106(1)(a) (emphasis added). There is no discretion
for a court to not impose restitution when the court deter-
mines that the victim has suffered economic damages.
Further reinforcing that criminal restitution is a
right guaranteed under the Oregon Constitution, a court
may not impose restitution in any amount less than the full
economic damages suffered without the express waiver of
that constitutional right by the victim. ORS 137.106(1) pro-
vides, in part:
“* * * * *
“(b) Notwithstanding paragraph (a) of this subsection,
a court may order that the defendant pay the victim resti-
tution in a specific amount that is less than the full amount
of the victim’s economic damages only if:
“(A) The victim or, if the victim is an estate, successor
in interest, trust or other entity, an authorized represen-
tative of the victim consents to the lesser amount, if the
conviction is not for a person felony; or
“(B) The victim or, if the victim is an estate, successor
in interest, trust or other entity, an authorized representa-
tive of the victim consents in writing to the lesser amount,
if the conviction is for a person felony.”
Finally, the legislature has created a framework
for a crime victim to assert a claim for a violation of their
Article I, section 42 rights. A victim who “wishes to allege
a violation of a right granted to the victim in a criminal
proceeding by Article I, section 42 or 43, of the Oregon
Constitution” must timely inform the trial court of the
alleged violation, describe the facts, and propose a remedy.
ORS 147.515(1). The victim may assert a claim “personally,
through an attorney or through an authorized prosecuting
attorney.” ORS 147.502(1). If a court determines that the
claim is valid, the court is required to issue an order to show
cause. ORS 147.515(3). If any party timely responds to the
Cite as 305 Or App 122 (2020) 137
order to show cause, then the court will hold a hearing. See
ORS 147.517(2)(b) (order to show cause must include date
on which court “will conduct a hearing on timely responses
to the claim”); ORS 147.530(1) (establishing procedures for
“[a] hearing on a claim, [or] a response filed under ORS
147.517(4)”); cf. ORS 147.520 (directing the court to resolve
claims where no response has been timely filed).
Importantly, the timeliness of a claim for a violation
of an Article I, section 42 right is not determined by refer-
ence to the criminal judgment. Rather, a claim is timely if
it is asserted by the victim “within 30 days of the date the
victim knew or reasonably should have known of the facts
supporting the allegation.” ORS 147.515(1). Accordingly,
regardless of how much time has passed since entry of the
criminal judgment, and regardless of whether sentence has
been imposed, a victim may assert a claim for a violation
of an Article I, section 42 right if they do so within 30 days
of when they knew, or reasonably should have known, that
their rights were violated.
In State v. Barrett, 350 Or 390, 255 P3d 472 (2011),
the Oregon Supreme Court addressed the scope of permissi-
ble remedies a court may craft in the face of a verified claim
for a violation of an Article I, section 42 right. In that case
the defendant was charged with stalking his estranged wife.
The victim had “invoked her right to be notified in advance
of sentencing and other critical stage hearings, and com-
pleted a form memorializing those requests.” Barrett, 350
Or at 395. However, prior to receipt of that form, the dis-
trict attorney engaged in plea negotiations with the defen-
dant. Those negotiations resulted in the defendant agreeing
to plea, waive 48 hours to set over sentencing, and proceed
immediately to be sentenced. The court imposed a relatively
lenient sentence of two years of probation. The victim was
not present at sentencing.
The victim brought a claim for a violation of her
Article I, section 42 rights, specifically requesting, as a rem-
edy, that the trial court set aside the defendant’s sentence
and resentence him with her present and participating.
Id. at 396. The trial court agreed that the victim’s Article I,
section 42 rights had been violated, but held that no remedy
138 State v. Lynch
was permissible under the Oregon Constitution or Oregon
statutes. Id.
On direct appeal to the Oregon Supreme Court,
the defendant advanced three arguments in support of the
trial court’s reasoning, the second of which is germane to
our analysis here: that the Double Jeopardy Clause of the
Fifth Amendment to the United States Constitution, as
incorporated against the states via the Due Process Clause,
barred setting aside a defendant’s sentence as a remedy for
an Article I, section 42 violation.
The court disagreed. First, it looked to the history
of the Double Jeopardy Clause and noted that “[h]istori-
cally, the common law allowed a trial court to increase the
length of the sentence, as long as it did so during the same
term of court, and the Double Jeopardy Clause was based on
common-law restrictions.” Id. at 406. Additionally, the court
relied on United States v. DiFrancesco, 449 US 117, 101 S
Ct 426, 66 L Ed 2d 328 (1980), for the proposition that a
defendant “ ‘is charged with knowledge of the statute and its
appeal provisions, and has no expectation of finality in his
sentence until the appeal is concluded or the time to appeal
has expired.’ ” Barrett, 350 Or at 406 (quoting DiFrancesco,
449 US at 135-36). In Oregon, the statutory mechanisms
that afford crime victims the right to assert a claim for a
violation of their rights based upon a timing mechanism
untethered from the entry of the criminal judgment simi-
larly shape a defendant’s reasonable “expectation of finality
in his sentence.” Id.
Ultimately, Barrett concluded that “[t]he victim was
entitled to a remedy by due course of law under Article I,
section 42(3)(a). Her proposed remedy—vacating defendant’s
sentence and conducting a resentencing hearing—was per-
missible.” 350 Or at 407. The court vacated the defendant’s
sentence and remanded for a new sentencing hearing,
expressly affording the trial court the option of crafting a
new sentence or imposing the same sentence. “[W]e do not
suggest that the trial court must impose any different sen-
tence than it did previously. That is a matter for the trial
court to determine after an appropriate hearing.” Id. And,
Cite as 305 Or App 122 (2020) 139
in fact, upon resentencing, and after hearing the victim’s
input, the court imposed a five-year probation period.
Like Barrett, this case is properly viewed as an
assertion of a claim for a violation of the victim’s Article I,
section 42 rights. That was clearly how the parties, and the
trial court, understood the matter.
“[PROSECUTOR]: We’re here on the State’s motion for
an order to show cause why the victim, City of Portland,
should not receive a restitution hearing in this case.
“[COURT]: It’s an interesting title of a motion. I’m not
sure that’s the actual device, but it’s close enough. * * *
“* * * * *
“[PROSECUTOR]: There’s a statutory scheme for vic-
tims’ rights violation and I was trying to track that.
“[COURT]: Yeah.”
The parties’ understanding that this was a claim
under ORS 147.515 for violation of an Article I, section 42
right is further reinforced by defense counsel’s arguments
at trial. Defense counsel explicitly challenged the timeliness
of the claim under ORS 147.515(1):
“[DEFENSE COUNSEL]: Your honor, I understand
your ruling on the timeliness matter, but my point is that
under existing case law, the only way they can cast aside
the timeliness issue is if they establish a victim’s constitu-
tional rights have been violated. And what I am submitting
to the court—
“[COURT]: Right.
“[DEFENSE COUNSEL]: —is that the City’s rights
were not violated in this instance. They knew that resti-
tution was at issue from the date of the incident. They’re
emailing, requesting estimates and invoices at least a week
later. Two of the exhibits that were submitted today show
that a Track-It order was being prepared in connection
with each job on April 28th.”
That challenge to the timeliness of the claim under
ORS 147.515(1) appears potentially well-founded, but that
challenge has not been raised on appeal. Before us, defen-
dant does not raise a statutory challenge, but has shifted
140 State v. Lynch
his argument to solely advance a two-fold constitutional
argument. First, defendant argues that imposition of resti-
tution, beyond the 90-day window contemplated in the plea
agreement, violates the Due Process Clause.
But that argument cannot survive Barrett’s dispo-
sition. The trial court here was faced with the same type of
claim for an Article I, section 42 violation as that raised in
Barrett. And, similarly, the court was authorized to afford the
victim a remedy. Any remedy short of altering the conviction
itself is permissible. Barrett, 350 Or at 400 (“Although a rem-
edy may include invalidating ‘a ruling of a court,’ it does not
include invalidating a ‘conviction or adjudication.’ * * * We
conclude that resentencing (at least in this case) would not
require invalidating a ‘conviction.’ ” (Internal citation omit-
ted.)). Accordingly, I cannot conclude, as does the majority,
that “the resolution of the charges against defendant under
the terms of the plea bargain gave defendant a protected
right under the federal constitution to the benefit of his bar-
gain.” 305 Or App at 130. The modification of the restitution
amount imposed here is no more disruptive—arguably less
so—than the remedy of Barrett, which was a complete set-
ting aside of the sentence. If general principles of the Due
Process Clause prohibit the trial court from modifying the
restitution amount in this case, then those same principles
should have foreclosed the relief granted in Barrett.
Further, there can be no “benefit of his bargain” if
the benefit is, as defendant argues, to extinguish a victim’s
statutory right to bring a claim. In essence, defendant on
appeal asks us to interpret his plea as altering the statutory
timeframe in which a victim could bring a claim for a vio-
lation of a constitutional right—altering it from the statu-
torily prescribed 30 days from the date of knowledge, to 90
days from the date of entry of the criminal judgment.1 That
is not a benefit to which defendant has a legal right. It is no
different than if the plea agreement had said that the victim
could not bring a civil suit against defendant if it was not
1
In contrast, defense counsel’s arguments at trial appear to acknowledge
that the plea cannot preclude an ORS 147.515 claim for a violation of an Article I,
section 42 right when counsel told the court that “under existing case law the
only way they can cast aside the timeliness issue is if they establish a victim’s
constitutional rights have been violated.”
Cite as 305 Or App 122 (2020) 141
commenced within 90 days of the entry of the criminal judg-
ment. Neither the defendant, nor the state, has any author-
ity to contract away the nonparty victim’s statutory right to
assert a claim for a violation of a constitutional right. “It goes
without saying that a contract cannot bind a nonparty [to
the contract].” EEOC v. Waffle House, Inc., 534 US 279, 294,
122 S Ct 754, 151 L Ed 2d 755 (2002). That does not change,
even when the contractual term is later codified in a judg-
ment with the approval of the court. Couch v. Couch, 170 Or
App 98, 103, 11 P3d 255 (2000), rev den, 332 Or 56 (2001) (“A
judgment is of no legal effect with respect to a person who
is neither a party to it nor is otherwise bound by it under
the rules of judgment preclusion. * * * Generally speaking, a
judgment will not bind a nonparty unless the nonparty was
in privity with a party to the underlying action.” (Internal
citations omitted.)).
Turning to defendant’s second argument, defen-
dant argues that “at a minimum, the state was obligated to
present its evidence of the nature and amount of the victim’s
economic damages within 90 days.” Accordingly, reasons
defendant, the state was “restrained from subsequently ask-
ing the court to impose an additional amount of restitution
after the 90-day deadline had passed.” In support of that
argument, defendant relies heavily on our decision in State
v. Thomas, 281 Or App 685, 386 P3d 218 (2016). According
to defendant, in Thomas we held that the state can, through
principles of contract involved in plea negotiations, obligate
itself to not seek restitution. Defendant misreads Thomas.
Thomas acknowledges the difference between the
statutory obligations by the state to “investigate” and “pres-
ent” evidence pertinent to restitution, while separating that
process as distinct from a recommendation to the court.
“To be sure, ‘[w]hen a person is convicted of a crime
* * * that has resulted in economic damages, the district
attorney shall investigate and present to the court * * * evi-
dence of the nature and amount of damages.’ ORS 137.106
(1)(a). And, if the court thereafter finds that the victim suf-
fered economic damages, the court shall enter a judgment
requiring restitution. Id. Even so, when offering a plea
agreement before conviction, some of the circumstances of
the crime may be unclear in light of conflicting evidence.
142 State v. Lynch
Or, a district attorney may lack information from a crime
victim about a loss, despite reasonable notice and investi-
gation. Whatever the results of investigation or presenta-
tion of evidence, nothing requires that the state recommend
restitution in every circumstance.”
Thomas, 281 Or App at 691 (emphasis in original).
As we recognized in Thomas, the state cannot con-
tract away its legislatively imposed obligation that it “shall”
investigate and present evidence for restitution in a crimi-
nal case where the victim has suffered an economic loss. It
may agree not to recommend restitution, but it cannot agree
not to investigate and present the evidence to the court.
Similarly, here, the state cannot contract away its statutory
role in assisting crime victims in raising a claim for a viola-
tion of a constitutional right.
The right to contract is important, and generally a
role of a court is to enforce contractual rights and obligations.
W. J. Seufert Land Co. v. Greenfield, 262 Or 83, 90-91, 496
P2d 197 (1972). However, “contract rights are [not] absolute;
* * * [e]qually fundamental with the private right is that of
the public to regulate it in the common interest.” Christian
et al. v. La Forge, 194 Or 450, 469, 242 P2d 797 (1952).
“One way in which courts have placed limits on the free-
dom of contract is by refusing to enforce agreements that
are illegal. Uhlmann v. Kin Daw, 97 Or 681, 688, 193 P
435 (1920) (an illegal agreement is void and unenforceable).
According to Uhlmann:
“An agreement is illegal if it is contrary to law, morality
or public policy. Plain examples of illegality are found
in agreements made in violation of some statute; and,
stating the rule broadly, an agreement is illegal if it vio-
lates a statute or cannot be performed without violating
a statute.”
Bagley v. Mt. Bachelor, Inc., 356 Or 543, 552, 340 P3d 27
(2014) (emphasis added).
Defendant’s interpretation of the effect of the “TBD
within 90 days” provision of the plea agreement would upend
the statutory scheme in place for bringing claims for viola-
tions of Article I, section 42 rights. Thus, even if defendant
Cite as 305 Or App 122 (2020) 143
and the state had the authority to alter the nonparty vic-
tim’s statutory rights (which they do not), such an agree-
ment would be in violation of the statute and, accordingly,
illegal and unenforceable. In my view, given that context,
the term “TBD within 90 days” cannot plausibly be under-
stood in the way that defendant contends.
For the reasons discussed, I conclude that the trial
court did have authority to impose restitution here. Further,
the state did not breach the plea agreement by bringing
before the court the victim’s statutory claim for a violation of
an Article I, section 42 right. The trial court’s supplemental
judgment awarding restitution should be affirmed.
I respectfully dissent.