Full Opinion (html_with_citations)

                                      131

Argued and submitted July 31, 2018; portion of judgment requiring defendant
to pay $100 bench probation fee vacated, remanded for resentencing, otherwise
                          affirmed Ocrober 16, 2019


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   MICHAEL JESSE BACCARO,
                       Defendant-Appellant.
                   Lincoln County Circuit Court
                       16CR45715; A163392
452 P3d 1022

    Defendant appeals a judgment of conviction for fourth-degree assault,
ORS 163.160; harassment, ORS 166.065; disorderly conduct, ORS 166.025; and
attempted criminal mischief, ORS 161.405. In a single assignment of error,
defendant challenges the imposition of a $100 bench probation fee, arguing
that the trial court erred by imposing the fee outside of his presence. The state
responds that any such error is harmless because imposition of the fee is required
by statute. Held: The Court of Appeals concluded that defendant’s $100 bench
probation fee was part of his sentence and, under ORS 137.010, the trial court
had the authority to suspend execution of that portion of the sentence. Therefore,
defendant had a right to advocate that the trial court use its discretionary power
to suspend execution of his bench probation fee and was denied the opportunity
because the imposition of the fee was done outside of his presence.
    Portion of judgment requiring defendant to pay $100 bench probation fee
vacated; remanded for resentencing; otherwise affirmed.



   Sheryl Bachart, Judge.
   Laura Eve Coffin, Deputy Public Defender, argued the
cause for appellant. On the brief were Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, and Vanessa
Areli, Deputy Public Defender, Office of Public Defense
Services.
   Lauren P. Robertson, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before Ortega, Presiding Judge, and James, Judge, and
Powers, Judge.*
______________
    * James, J., vice Garrett, J. pro tempore.
132                                    State v. Baccaro

  JAMES, J.
   Portion of judgment requiring defendant to pay $100
bench probation fee vacated; remanded for resentencing;
otherwise affirmed.




  Reversed and remanded.
Cite as
300 Or App 131
 (2019)                                          133

          JAMES, J.
         Defendant appeals a judgment of conviction for fourth-
degree assault, ORS 163.160; harassment, ORS 166.065;
disorderly conduct, ORS 166.025; and attempted criminal
mischief, ORS 161.405. In a single assignment of error,
defendant challenges the imposition of a $100 bench proba-
tion fee, arguing that the trial court erred by imposing the
fee outside of his presence. The state responds that any such
error is harmless because imposition of the fee is required
by statute. We vacate the portion of the judgment requiring
defendant to pay the $100 bench probation fee and remand
for resentencing.
        The facts are procedural and not in dispute. Defen-
dant was convicted after a jury trial. At the sentencing
hearing, at which defendant was present, the trial court
imposed 60 months of bench probation but did not mention
the $100 bench probation fee required by ORS 137.540(8).1
The written judgment entered later that day included the
bench probation fee.
          On appeal, defendant argues that the trial court
erred by imposing the fee in defendant’s absence, in violation
of Article I, section 11, of the Oregon Constitution and the
Fourteenth Amendment to the United States Constitution.
While this case was pending in this court, we decided State
v. Hillman,
293 Or App 231
,
426 P3d 249
 (2018), in which
we held that the trial court erred by imposing a probation
violation fee pursuant to a different statute, ORS 137.540
(11)(a) (2015), in the written judgment when that fee was not
announced in the defendant’s presence.
Id. at 232
.
        The state concedes that the principle in Hillman
applies with equal force to a bench probation fee under ORS
137.540(8) and that the trial court consequently erred by
imposing that fee in the written judgment without first
announcing it in defendant’s presence. The state argues,
however, that the error was harmless. According to the

    1
      ORS 137.540 was amended and renumbered after defendant was sentenced.
However, because the amendments do not affect our analysis—the provision was
renumbered from ORS 137.540(7) to ORS 137.540(8)—we refer to the current
provision.
134                                                         State v. Baccaro

state, because the fee is mandatory under ORS 137.540(8),
the trial court had no discretion not to impose it, and thus
any imposition of such a mandatory fee outside of defen-
dant’s presence could not result in actual harm to defendant.
Defendant argues that a trial court does have statutory
discretion to waive the fee or, in the alternative, authority
to modify the fee for constitutional proportionality reasons
pursuant to Article I, section 16, of the Oregon Constitution,
and that he was therefore harmed by not having the oppor-
tunity to address the issue in court.2
         We note at the outset that the state’s argument in
this case is contrary to our decision in State v. Sankey,
289 Or App 846
, 847,
409 P3d 73
 (2018). There, we accepted a
state concession that imposition of a bench probation fee out-
side of a defendant’s presence was reversible error.
Id.
 The
state does not cite Sankey to this court, nor does it explain
why our acceptance of the state’s concession in that case was
legally incorrect. Nevertheless, because Sankey did involve
a concession and, consequently, this court did not find it nec-
essary to explain why such error was not harmless, we do so
now.
         Defendant’s argument that the bench probation fee
is discretionary or statutorily waivable by the trial court is
not supported by the text of the statute. ORS 137.540(8) pro-
vides, in part:
       “The court may order that probation be supervised by
    the court. If the court orders that probation be supervised
    by the court, the defendant shall pay a fee of $100 to the
    court.”
(Emphasis added.) Defendant argues that the word “shall,”
in this context, simply means that, if the court imposes a
fee, the fee “shall” be $100. That is not what the statute says.
The condition precedent in the statute is not the imposition
of a fee but the order of court-supervised probation. If that
condition is met, the statute requires a fee of $100. The text
    2
      The state also argues that defendant did not preserve his argument because
he did not object to the imposition of the fee. Because the error of which defendant
complains appeared for the first time in the written judgment, however, defen-
dant is excused from the preservation requirement. See State v. Selmer,
231 Or App 31, 35
,
217 P3d 1092
 (2009), rev den,
347 Or 608
 (2010).
Cite as
300 Or App 131
 (2019)                                                 135

admits of no discretion on the part of the trial court either to
waive the fee or to impose an amount other than $100. See
Doyle v. City of Medford,
347 Or 564, 570
,
227 P3d 683
 (2010)
(“Ordinarily, use of the word ‘shall’ implies that the legis-
lature intended to create an obligation[.]”); see also State v.
Justice,
273 Or App 457, 465
,
361 P3d 39
 (2015) (same); State
v. Riley,
195 Or App 377, 383
,
97 P3d 1269
 (2004), rev den,
340 Or 673
 (2006) (stating that the legislature’s use of the
word “shall” indicates a mandatory provision, which the
court must apply).
          Defendant points to a different subsection, ORS
137.540(1), which allows a court to “delete” specific probation
conditions from a defendant’s judgment, for the proposition
that the bench probation fee is discretionary.3 Defendant
misconstrues how ORS 137.540 operates. ORS 137.540(1)
enumerates general probation conditions in paragraphs
(a) to (q) that apply to all probationers “unless specifically
deleted by the court.” The remaining subsections of ORS
137.540, in contrast, either address specific probation con-
ditions that may apply only if certain conditions are satis-
fied, or deal with other aspects of probation. See, e.g., ORS
137.540(2) (authorizing “special conditions of probation that
are reasonably related to the crime of conviction”); ORS
137.540(3) (authorizing probation conditions for persons con-
victed of stalking); ORS 137.540(8) (authorizing probation
conditions for persons placed on bench probation). When
read in context, it is plain that the “unless specifically
deleted by the court” language in subsection (1) applies only
to the general conditions listed in that subsection. Therefore,
the $100 bench probation fee in ORS 137.540(8) is a man-
datory fee, which the court has no statutory discretion to
“delete.”
     3
       Defendant also argues that ORS 423.570(6)(b) (providing that the “sentenc-
ing court may waive or reduce the amount of the fee for any person whom the
court has sentenced to probation”) indicates that the trial court had discretion
to not impose the bench probation fee. ORS 423.570, however, governs monthly
fees used to offset the cost of supervising probation, whereas ORS 137.540 gov-
erns numerous probation conditions. ORS 137.540(8) specifically imposes a
one-time fee to the court. Therefore, ORS 423.570(6)(b) does not apply to ORS
137.540(8). Additionally, in a footnote in defendant’s supplemental briefing, defen-
dant points to additional statutes he believes supports a waiver of the fee, but
does not fully develop arguments as to why those statutes are applicable, or
controlling.
136                                              State v. Baccaro

        However, simply because the fee cannot be waived,
and must be included in the judgment, does not end the
inquiry. That is so because there is a distinction between
imposing a term in a judgment and executing that term in
the judgment.
   “Historically, probation amounted to the conditional release
   of a defendant after conviction but before any sentence for
   that crime commenced. State v. Ludwig,
218 Or 483
, 486-
   87,
344 P2d 764
 (1959). That was accomplished in either of
   two ways: First, the court could suspend the imposition of
   the sentence itself, so that sentencing did not occur unless
   the defendant violated the terms of probation. Second, the
   court could impose sentence, but suspend the execution of
   the sentence. See State v. Stevens,
253 Or 563, 565
,
456 P2d 494
 (1969) (noting ways in which trial court could impose
   probation); see also generally Arthur W. Campbell, Law of
   Sentencing § 5:1, 149 (3d ed 2004).”
State v. Lane,
357 Or 619, 623
,
355 P3d 914
 (2015). Although,
as Lane makes clear, the historical concept of the suspen-
sion of imposition of a sentence was altered with the passage
of the felony sentencing guidelines, it remains pertinent for
misdemeanor sentencing, as in this case.
Id. at 624
. ORS
137.010(3) states:
       “Except when a person is convicted of a felony commit-
   ted on or after November 1, 1989, if the court is of the opin-
   ion that it is in the best interests of the public as well as
   of the defendant, the court may suspend the imposition or
   execution of any part of a sentence for any period of not more
   than five years.”
(Emphasis added.)
         The remaining question then is whether the $100
bench probation fee is part of defendant’s “sentence.” Under
the facts of this case, we conclude that it is. Pursuant to
ORS 137.010(4), a court may suspend the imposition or exe-
cution of a misdemeanor sentence and impose a “sentence
of probation.” We have held that one of the general condi-
tions of probation under ORS 137.540(1)(a) “is the required
payment of a $100 bench probation supervision fee.” State v.
White,
269 Or App 255, 256-57
,
344 P3d 255
, rev den,
357 Or 300
 (2015). When, as in this case, a trial court imposes
Cite as
300 Or App 131
 (2019)                              137

probation, and in so doing does not suspend the imposition
or execution of the bench probation fee, that fee is part of the
misdemeanor sentence.
         Thus, regardless of whether a trial court is pro-
hibited from deleting the $100 bench probation fee from
the judgment, under ORS 137.010, it retains the author-
ity to suspend execution of that portion of the sentence.
Defendant, therefore, had a right to advocate for the court
to use its discretionary power to suspend execution of his
bench probation fee and was denied the opportunity because
the imposition of the fee was done outside of his presence.
Accordingly, we cannot conclude the error was harmless.
         Portion of judgment requiring defendant to pay
$100 bench probation fee vacated; remanded for resentenc-
ing; otherwise affirmed.