Narrative Opinion Summary
In this appellate case, the defendant challenged an order of restitution imposed in his absence, arguing the failure to waive his statutory right to be present at all stages of trial, including sentencing, as prescribed by ORS 137.030, ORS 137.040, and ORS 137.106. Having pled guilty to first-degree burglary, the defendant was sentenced to a 24-month imprisonment term. While the trial court reserved the determination of restitution, which the defendant disputed due to inadequate documentation, a written judgment later delegated restitution calculation to the District Attorney's Office, advising the defendant to request a formal hearing within 21 days. However, the record lacked evidence of the defendant's receipt or understanding of this judgment. At the restitution hearing, the defendant was absent, and his attorney had not communicated with him since sentencing, leading the court to set the restitution amount over counsel's objections. Citing State v. Turner, the appellate court noted the absence of voluntary waiver evidence, particularly given the defendant's incarceration in Arizona and lack of transportation. The court determined the state's reliance on prior cases was inappropriate due to the absence of proof that the defendant was informed of the judgment. Consequently, the appellate court vacated the restitution order and remanded for resentencing, affirming the remainder of the judgment.
Legal Issues Addressed
Necessity of Defendant's Awareness for Waiversubscribe to see similar legal issues
Application: The absence of evidence showing the defendant's receipt or awareness of the written judgment negated the presumption of waiver.
Reasoning: There is no evidence in the record showing that the defendant was aware of a proposed waiver in the trial judge's written judgment.
Presumption Against Waiver from Silent Recordsubscribe to see similar legal issues
Application: The court rejected the state's assumption of waiver based on an unsubstantiated record, reinforcing the principle that waiver cannot be presumed from a silent record.
Reasoning: The state's request to assume the defendant received this judgment is insufficient, as presuming waiver from a silent record is not permissible.
Requirements for Waiver of Statutory Rightssubscribe to see similar legal issues
Application: A waiver of statutory rights must be clearly proven as an intentional relinquishment of a known right, which was not evident in this case due to lack of evidence that the defendant received notice.
Reasoning: The court confirmed that a defendant can waive their right to be present, but such a waiver must be an intentional relinquishment of a known right.
Waiver of Right to be Present at Sentencingsubscribe to see similar legal issues
Application: The defendant's absence from the restitution hearing did not constitute a waiver of his right to be present, as there was no intentional relinquishment of a known right.
Reasoning: The appellate court reviewed the trial court's findings and concluded that Kesch did not voluntarily waive his right to be present at the restitution hearing.