Cases | State v. Plumb, 87 P.3d 676 (Or. Ct. App. 2004) | 2018
The defendant plead guilty to twelve counts of aggravated theft and the trial court imposed consecutive sentences amounting to 66 months of incarceration, and $1 million in restitution. The defendant was also ordered to convey all her real property, her IRA account, and her 401(k) account to the victim. On appeal, the defendant made three arguments that survived procedural requirements: 1) her 401k account was exempt from collection; 2) “restitution is limited to proceeds directly related to her underlying crime;” and 3) the court erred in appointing a receiver to sell her personal property located in five storage facilities. The court of appeals held that 1) the defendant’s 401(k) account was exempt from collection under 29 USC 1056(d)(1) because it is subject to ERISA; 2) that the state was not required to “prove that the proceeds of [her 401(k)] . . . were stolen from the victim” because “[t]here is no statutory requirement that defendant must return the specific embezzled funds;” and 3) because there was no statute addressing the situation where parties cannot agree to the value of the defendant’s assets, the appointment of a receiver was appropriate. The order requiring conveyance of the defendant’s 401(k) pension account was reversed; the case was remanded for resentencing, and otherwise affirmed.