168 June 12, 2024 No. 393

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

PEDRO RENATO SCHAY-VIVERO,

Defendant-Appellant.

Marion County Circuit Court

22CR20839, 19CR42709; A179708 (Control), A179707

Courtland Guyer, Judge.

Argued and submitted May 14, 2024.

Kyle Krohn, Deputy Public Defender, argued the cause 

for appellant. Also on the briefs was Ernest G. Lannet, 

Chief Defender, Criminal Appellate Section, Office of Public 

Defense Services.

Timothy Sylwester, Assistant Attorney General, argued 

the cause for respondent. Also on the brief were Ellen F. 

Rosenblum, Attorney General, and Benjamin Gutman, 

Solicitor General.

Before Tookey, Presiding Judge, Egan, Judge, and 

Kamins, Judge.

EGAN, J.

Remanded for resentencing; otherwise affirmed.
Cite as 333 Or App 168 (2024) 169

EGAN, J.

In this consolidated appeal, defendant appeals a 

judgment of conviction for one count of harassment, ORS 

166.065, and a judgment of conviction for one count of unlawful use of a weapon, ORS 166.220. We remand for resentencing and otherwise affirm.

In his first assignment of error, defendant contends 

that the trial court erred when it included in the judgment of 

conviction for harassment a term ordering him to pay “any 

required per diem fees.” Defendant argues that resentencing 

is required because the trial court “did not pronounce those 

fees at sentencing,” but that, instead, they appeared for the 

first time in the judgment of conviction.1 State v. Priester, 

325 Or App 574, 581, 530 P3d 118, rev den, 371 Or 332 (2023) 

(“A criminal defendant has the right to have their sentence 

announced in open court. A trial court commits reversible 

error if it does not do so, and the result is usually a resentencing.” (Internal citations omitted.)). Although it is not 

entirely clear from the record, we understand the reference 

to per diem fees in the judgment of conviction for harassment to refer to the fees authorized by ORS 169.151(1).2

The state responds to defendant’s first assignment 

of error by arguing that any error in ordering defendant to 

pay “any required per diem fees” does “not provide a basis 

for reversal,” because the error “is both moot and harmless.”

During the pendency of this appeal, we decided 

State v. Barr, 331 Or App 242, 545 P3d 772 (2024), which is 

controlling and requires that we remand for resentencing in 

this case. In Barr, the defendant appealed a judgment ordering him to pay any required per diem fees “as to each misdemeanor count for which the defendant was sentenced to 

time in the county jail.” Id. at 244. We remanded for resentencing, because—as is the case here—the trial court “did 

1 Our resolution of defendant’s first assignment of error obviates the need to 

address his second assignment of error, in which he asserts that “the trial court 

erred in imposing a $200 fine.”

2 ORS 169.150(1) provides, in pertinent part, that “[a] city or, notwithstanding ORS 169.150(1), a county may seek reimbursement from a person who is or 

was committed to the local correctional facility of the county or city upon conviction of a crime for any expenses incurred by the county or city in safekeeping and 

maintaining the person.”
170 State v. Schay-Vivero

not address per diem fees at the sentencing hearing.” Id. In 

doing so in Barr, we rejected arguments by the state that 

any error in the imposition of per diem fees was harmless or 

moot. Id.

In a memorandum of additional authorities, the 

state argues that Barr is not controlling because the record 

in this case “does not show [defendant] was ever incarcerated solely on the harassment charge.” But the state does 

not explain why that distinction between this case and Barr 

matters. Beall Transport Equipment Co. v. Southern Pacific, 

186 Or App 696, 700 n 2, 64 P3d 1193, adh’d to as clarified 

on recons, 187 Or App 472, 68 P3d 259 (2003) (“[I]t is not 

this court’s function to speculate as to what a party’s argument might be” or “to make or develop a party’s argument 

when that party has not endeavored to do so itself.”).3

 The 

judgment, which includes the order that defendant pay any 

required per diem fees, is a “legal document with potential 

financial consequences to defendant,” State v. Williams, 280 

Or App 631, 632, 380 P3d 1225, rev den, 360 Or 604 (2016), 

notwithstanding that defendant may have been incarcerated for both harassment and other charges at the time 

those potential fees accrued.4

The state also argues that the order in the judgment of conviction for harassment requiring defendant to 

3 We also observe that it is not clear what distinction the state is seeking 

to draw between this case and Barr with its argument that the record in this 

case “does not show [defendant] was ever incarcerated solely on the harassment

charge.”

As noted, the defendant in Barr was ordered to pay any required per diem 

fees for “each misdemeanor count for which [he] was sentenced to time in the 

county jail.” 331 Or App at 244. But the defendant in Barr was convicted of other 

offenses too; offenses for which the trial court did not order defendant to pay per 

diem fees. Id. at 243. The opinion in Barr does not suggest that the defendant 

was incarcerated “solely” for those misdemeanors for which he was required to 

pay per diem fees, and he was presumably incarcerated for the other offenses too, 

which, from the discussion in Barr, we understand to be felonies. Thus, it appears 

to us that this case is on all fours with Barr.

4 At oral argument, the state noted that the “per diem fee” clause at issue 

in this appeal is in a “form judgment” and is in many such judgments that are 

presently pending before this court. As we noted in Williams, regarding a different form of judgment, “[r]egardless of the fact that it is a form, and perhaps a not 

clear one, it is a form of judgment with a money award.” 280 Or App at 632. That 

is, it is, as noted above, a judgment that has potential financial consequences to 

defendant.
Cite as 333 Or App 168 (2024) 171

pay any required per diem fees does not necessitate resentencing because that “clause does not impose any obligation, disability, or potential financial liability that does not 

exist simply by operation of ORS 169.151.” That is so, in the 

state’s view, because “the clause does not impose any specific 

fee that [defendant] must pay, and it does not purport to 

make him liable for any fee or sum that the county could not 

otherwise collect in such an action, and whatever right the 

county may have to seek reimbursement from him under 

ORS 169.151 does not depend on the clause being included 

in the judgment.” The difficulty with the state’s argument is 

that that was true of the order in Barr regarding per diem 

fees that we concluded required resentencing. For that reason, the state’s arguments are foreclosed by our decision in 

Barr.

Remanded for resentencing; otherwise affirmed.