Court: Court of Appeals of Oregon; January 25, 2000; Oregon; State Appellate Court
William John Donahue appeals his conviction and sentence for first-degree sexual abuse, arguing that the trial court erred by allowing a witness to testify to the victim's medical diagnosis and by imposing a $12,000 compensatory fine. Initially, the appellate court vacated the fine but affirmed the conviction. Following a remand from the Supreme Court for reconsideration in light of State v. Edson, the appellate court maintained its position on the evidentiary issue but focused on the compensatory fine's validity.
The trial court had awarded the fine to compensate the victim, but according to ORS 137.101(1), a compensatory fine requires a finding of pecuniary loss resulting from the defendant's actions. The court noted that no evidence of such loss was presented, and the trial court had explicitly found there was no pecuniary loss. Although the victim had a scheduled counseling appointment and the prosecution sought $5,000 for future treatment, the trial court deemed this speculative.
Referencing State v. Edson, the court reiterated that for restitution or compensatory fines to be valid, three criteria must be met: 1) criminal activity, 2) pecuniary damages, and 3) a causal link between them. It clarified that while future treatment costs could be covered, mere scheduling of counseling does not confirm incurred or anticipated pecuniary harm. Thus, the compensatory fine was found to be imposed in error. The appellate court concluded that due to this sentencing error, the case must be remanded for resentencing as per ORS 138.222(5).
Legislation mandates remanding for resentencing rather than simply vacating a sentence portion, as established in Edson, 329 Or. at 138-39, 985 P.2d 1253. In this case, the compensatory fine was vacated, and the matter was returned to the trial court for resentencing, while other aspects of the decision were affirmed. The defendant committed the crime in 1992 and was sentenced in 1995. ORS 138.222(5), enacted in 1993, requires remand of the entire sentencing package upon sentencing errors. This statute applies to felony sentences imposed for crimes committed on or after November 1, 1989. An ex post facto violation, per Article I, section 21, of the Oregon Constitution, arises when laws retroactively punish previously legal acts, alter their punishment, or remove defenses. However, no such violation is found in this case, as the remand does not increase the defendant's punishment beyond what could have been imposed in 1992.
