STATE v. MANN (2020)

Defendant appeals a judgment of conviction for two counts of attempted sexual abuse. He assigns error to the trial court's award of $4,400 in restitution to Willamette Valley Community Health. He contends that the award was legally erroneous under State v. Moreno-Hernandez, 365 Or. 175, 442 P.3d 1092 (2019), and State v. White, 299 Or. App. 165, 449 P.3d 924 (2019), in which we applied Moreno-Hernandez to reverse and remand a restitution award under circumstances not meaningfully distinguishable from those present here. The state does not seriously dispute ¹ that the award is erroneous under the reasoning in White but argues that we should affirm on an alternative ground that was not raised in White, thereby obviating the need for a remand.

Whether to consider a proffered alternative basis for affirmance is a matter of discretion. State v. Fry, 303 Or. App. 587, 593, 464 P.3d 521 (2020). We decline to exercise that discretion here, mainly because we are not wholly confident that the parties would not have generated a different record if the state had raised its alternative theory before now. As explained in White, on remand, the court may consider whether there are “other permissible options,” including the option proposed by the state, for awarding restitution to Willamette Valley Community Health. 299 Or. App. at 169, 449 P.3d 924.

Reversed and remanded for resentencing; otherwise affirmed.

FOOTNOTES

1.   The state raises a preservation argument, but that argument is nearly identical to the one we rejected in White itself, and we reject it for the same reasons here. See White, 299 Or. App. at 168 n. 1, 449 P.3d 924.

PER CURIAM