State v. Berger

694 November 12, 2026 No. 1103 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. MICHAEL WALTER BERGER, Defendant-Appellant. Malheur County Circuit Court 24CR35759; A187317 Lung S. Hung, Judge. Submitted October 7, 2026. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Dan Rayfield, Attorney General, Paul L. Smith Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent. Before Tookey, Presiding Judge, Egan, Judge, and Jacquot, Judge. TOOKEY, P. J. Reversed and remanded for entry of an amended judg- ment; otherwise affirmed. Nonprecedential Memo Op: 354 Or App 694 (2026) 695 TOOKEY, P. J. Defendant appeals a judgment of conviction for first-degree theft, ORS 164.055, and assigns error to the trial court’s (1) inclusion of “an order in the judgment that allow[s] the court to impose additional assessments without further notice to defendant and without further court order,” and (2) imposition of “restitution in the absence of evidence in support of the state’s requested amount.” Regarding allowing the court to impose additional assessments, the state concedes that reversal and remand are necessary so that the trial court can amend the judg- ment to delete the language regarding “other assessments.” Regarding the imposition of restitution, the state contends that defendant invited any error and that any error is not plain. We agree with and accept the state’s concession, reverse and remand for entry of an amended judgment deleting the terms “and other assessments” and “and assess- ments” from the judgment, and otherwise affirm. Restitution. We begin with defendant’s second assignment, in which he argues that the trial court plainly “erred when it imposed restitution, without requiring the state to present any evidence, when defendant did not stipu- late to the restitution amount in the written plea agreement.” We agree with the state that defendant invited the error that he now points to, given that he indicated that he was “okay” with the amount of restitution when the court asked for his “position regarding the restitution request.” See State v. Kammeyer, 226 Or App 210, 214, 203 P3d 274, rev den, 346 Or 590 (2009) (“Under the invited error doctrine, a party who was actively instrumental in bringing about an alleged error cannot be heard to complain, and the case ought not to be reversed because of it.” (Internal quotation marks omitted)); id. (concluding that the defendant invited any error in the imposition of restitution where the defendant told the court that he was “okay” with the restitution award). And even if defendant did not invite the error that he now points to, we further conclude that the trial court did not plainly err in imposing restitution in this case. See 696 State v. Berger State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013) (“For an error to be plain error, it must be an error of law, obvious and not reasonably in dispute, and apparent on the record without requiring the court to choose among com- peting inferences.”). As we have observed, “nothing on the face of ORS 137.106”—which governs restitution to victims in criminal matters—”plainly indicates that the legislature intended to foreclose a sentencing court from imposing an unobjected-to amount of restitution.” State v. Coons, 300 Or App 618, 621, 455 P3d 564 (2019), rev den, 366 Or 382 (2020). Therefore, we cannot conclude that it is “obvious and not reasonably in dispute” that the law precluded the trial court from imposing restitution under the circumstances in this case. Vanornum, 354 Or at 629. Accordingly, we reject defendant’s second assign- ment of error. Other Assessments. We turn then to defendant’s first assignment, in which he argues that the trial court erred in stating in the judgment, “The court may increase the total amount owed by adding collection fees and other assessments. These fees and assessments may be added without further notice to the defendant and without further court order.” (Emphases added). In State v. Martinez, 347 Or App 273, 278- 79, 587 P3d 428 (2026), we concluded that, although ORS 1.202 permits the court to add collection fees without further notice and court order, that statute does not authorize “other assessments.” We further concluded that the court erred in including the references in the judgment to “other assess- ments” because those references misstated the law, and we reversed and remanded for entry of an amended judgment deleting the references to other “assessments.” Id. at 280. As noted, the state concedes that, given our hold- ing in Martinez, reversal and remand are necessary to allow the trial court to enter an amended judgment. We agree and reverse and remand for entry of an amended judg- ment deleting the terms “and other assessments” and “and assessments.” Reversed and remanded for entry of an amended judgment; otherwise affirmed.