STATE v. HARRY (2020)

Court of Appeals of Oregon.

STATE of Oregon, Plaintiff-Respondent, v. Kester Gordon HARRY, Defendant-Appellant.

A167756

Decided: February 20, 2020

Before Armstrong, Presiding Judge, and Tookey, Judge, and Aoyagi, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Meredith Allen, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Julie Glick, Assistant Attorney General, filed the brief for respondent.

Defendant appeals a judgment of conviction for second-degree manslaughter, ORS 163.125. He argues that the trial court made various errors at trial, and also erred in imposing restitution in the amount of $101,095.04 payable to SAIF Corporation. We reject all of defendant’s assignments of error without discussion except the one concerning restitution. As for restitution, defendant did not preserve his claim of error but argues that the court plainly erred in imposing restitution because the state failed to provide any evidence to support an award of restitution to SAIF Corporation. The state concedes that the trial court plainly erred in that regard. We agree and accept the concession. We exercise our discretion to correct the error for the reasons set forth in State v. Martinez, 250 Or. App. 342, 344, 280 P.3d 399 (2012) (“The amount of restitution is not insubstantial given defendant’s circumstances; moreover, the interests of justice militate against requiring a defendant to pay an obligation that is totally unsubstantiated by the record.”).

Remanded for resentencing; otherwise affirmed.

PER CURIAM

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