State v. Avalos

362

Submitted November 24, remanded for resentencing, otherwise affirmed

December 30, 2020

STATE OF OREGON,

Plaintiff-Respondent,

v.

MERLINDA M. AVALOS,

Defendant-Appellant.

Washington County Circuit Court

18CR41305; A170462

480 P3d 334

D. Charles Bailey, Jr., Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Erik Blumenthal, Deputy Public Defender,

Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Dashiell L. Farewell, Assistant

Attorney General, filed the brief for respondent.

Before DeVore, Presiding Judge, and DeHoog, Judge, and

Mooney, Judge.

PER CURIAM

Remanded for resentencing; otherwise affirmed.

Cite as 308 Or App 362 (2020) 363

PER CURIAM

Defendant was convicted of six counts of first-degree

criminal mistreatment, ORS 163.205. On appeal, defendant

contends that the trial court erred when it ordered her to

pay restitution to CareOregon and to Child Abuse Response

and Evaluation Services (CARES) Northwest and to pay a

compensatory fine totaling $20,000 to the three child vic-

tims. Defendant did not preserve those contentions and

seeks plain error review. ORAP 5.45(1).

In response, the state concedes that the trial court

plainly erred when it ordered defendant to pay restitution

to CARES Northwest and to pay a compensatory fine to the

child victims of her crimes. We agree with and accept the

state’s concession regarding CARES Northwest. State v.

White, 296 Or App 445, 450-52, 439 P3d 569, rev den, 365

Or 195 (2019) (on the record before the trial court, CARES

did not suffer economic damages “as a result of the defen-

dant’s criminal activities” by providing services to the direct

victim of the defendant’s crimes and, under the restitution

statute, was therefore not a “victim” to whom the defendant

could be ordered to pay restitution). We also agree with and

accept the state’s concession that the children were not “vic-

tims” for compensatory purposes because they did not per-

sonally suffer economic damages, and therefore it was error

for the court to order the compensatory fine to the children.

See State v. Moreno-Hernandez, 365 Or 175, 181-82, 189, 442

P3d 1092 (2019) (economic damages required to qualify as

“victim” under ORS 137.103(4); unemancipated minor does

not suffer economic damages for medical expenses).

Defendant argues that it was plain error for the

court to award restitution to CareOregon because it is

an insurer and does not qualify as a “victim” under ORS

137.103(4). For plain-error review, “(1) the error must be

an error of law; (2) it must be ‘apparent,’ in that the ‘legal

point is obvious, not reasonably in dispute’; and (3) it must

appear on the record such that ‘[w]e need not go outside the

record or choose between competing inferences to find it,

and the facts that comprise the error are irrefutable.’ ” State

v. Coverstone, 260 Or App 714, 715, 320 P3d 670 (2014) (quot-

ing State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990)).

364 State v. Avalos

The state argues that CareOregon, as a Coordinated Care

Organization and Oregon Health Plan provider, qualifies as

a victim under ORS 137.103(4)(b) and asserts that any error

is not plain. We conclude that defendant’s contention fails on

the second prong of the plain-error test and agree with the

state that it is not susceptible to plain-error review.

Regarding disposition, the state argues that we

should reverse as to the imposition of restitution for CARES

Northwest and the compensatory fine and remand for resen-

tencing to allow the trial court to determine if it has “other

permissible options available to it” regarding the imposition

of restitution or a fine. State v. White, 299 Or App 165, 169,

449 P3d 924 (2019) (citing Moreno-Hernandez, 365 Or at

190-91). We agree and remand for resentencing consistent

with this opinion

Remanded for resentencing; otherwise affirmed.