Argued and submitted April 29, 2013.
On petition for review pursuant to ORS 147.539. No. CC CR100607
Erick J. Haynie, Perkins Coie, Portland, argued the cause and filed the brief for petitioner on review. With him on the brief were Nathan R. Christensen and Bryan D. Beel.
Paul L. Smith, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review State of Oregon. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Paula J. Lawrence, The Lawrence Law Firm, McMinnville, argued the cause and filed the brief for respondent on review Daniel Algeo.
Margaret Garven, Portland, filed a brief for amicus curiae The National Crime Victim Law Institute. With her on the brief was Amy C. Liu.
Petitioner is a crime victim who filed a claim pursuant to ORS 147.515, alleging that the trial court had violated her right to "receive prompt restitution" under Article I, section 42(1)(d),  of the Oregon Constitution. The trial court entered an order denying petitioner's claim, and, pursuant to ORS 147.539, petitioner sought direct review of that order in this court. For the reasons that follow, we affirm the trial court's order.
The material facts are procedural and undisputed. Petitioner and her friend were crossing a street late at night when defendant, who had been drinking, hit them with his car and seriously injured them. Defendant pleaded guilty to one count of driving under the influence of intoxicants and two counts of assault in the fourth degree for "intentionally, knowingly or recklessly caus[ing] physical injury." ORS 163.160. The trial court sentenced defendant to a combination of supervised probation, jail time, fines, and suspension of his driver's license. Pursuant to ORS 137.106, the trial court judgment also granted the state 90 days to submit a "reasonable final restitution amount."
ORS 137.106(1) provides that, when a trial court determines that a person has been convicted of a crime that has resulted in economic damages, the court must include in its judgment a requirement that the defendant pay restitution to the victim in the "full amount" of those damages. In this case, the state timely submitted a proposed supplemental judgment requesting that defendant be ordered to pay restitution in an amount that defendant stipulated represented the full amount of petitioner's economic damages. The trial court found that criminal conduct had occurred; that petitioner had suffered economic damages; and that, but for defendant's criminal conduct, petitioner would not have incurred those damages. However, the court asked the parties to brief two questions: (1) whether the court may grant an award of restitution that exceeds the amount that petitioner could have recovered in a civil action; and (2) whether a contributory negligence analysis is appropriate in the context of a restitution determination.
After considering the parties' arguments, the court issued a letter opinion dated July 17, 2012, awarding restitution in an amount equal to 10 percent of petitioner's economic damages. The court reasoned that the economic damages recoverable through criminal restitution are those that are recoverable in a civil action and that, in a civil action, petitioner could not have obtained judgment for damages resulting from her own negligence. The court found that petitioner had been "jaywalking" when defendant struck and injured her and concluded that that unlawful activity, rather than defendant's criminal conduct, was the "cause" of petitioner's injuries. However, because defendant had admitted at sentencing that he recklessly had caused physical injury to petitioner, the court determined that the state had proved that defendant had caused "some, " although not more than a "nominal percentage, " or 10 percent, of petitioner's economic damages. "It is clear from the evidence that almost all of the economic damages suffered by the victim were caused by [her] violation of the law, " the court wrote. "I don't believe I have any authority to award more." The court then entered a supplemental judgment in an amount that reflected its reasoning. Neither party appealed from that judgment, which was entered on August 3, 2012.
On August 13, 2012, represented by private counsel, petitioner filed a claim in the underlying criminal proceeding alleging that the court had entered the supplemental judgment in error and in violation of Article I, section 42, of the Oregon Constitution. Petitioner set out her claim on Form 4.100.2a of the UTCR Appendix of Forms, "Claim of Violation of Crime Victims' Right(s)." On September 13, 2012, petitioner filed an amended claim using the same form. In her amended claim, petitioner alleged that the court's supplemental judgment had violated her right "[t]o receive prompt restitution from the convicted criminal who caused [her] loss or injury." As a remedy, petitioner sought restitution in the full amount of her economic damages.
After considering additional briefing and conducting another hearing, the trial court entered an order denying petitioner's claim "for the reasons on the record includ[ing the court's] letter opinion of July 17, 2012." Petitioner sought review of the trial court's order pursuant to ORS 147.539. This court exercised its discretion to grant review and extended the time to issue its final decision pursuant to ORS 147.539(4)(b).
Before considering petitioner's arguments, we think it helpful to lay out the pertinent constitutional and statutory framework that governs petitioner's claim. Article I, sections 42 and 43, of the Oregon Constitution provide crime victims with specifically enumerated rights, including "[t]he right to receive prompt restitution from the convicted criminal who caused the victim's loss or injury." Or Const, Art I, § 42(1)(d). Article I, section 42(3)(a), provides that every victim shall have a "remedy by due course of law for violation of a right established in [section 42]." Article I, section 42(3)(b), provides that a "victim may assert a claim ...