Submitted November 5, 2018
County Circuit Court 17CR04281 Norman R. Hill, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Stephanie J. Hortsch, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Michael A. Casper, Assistant Attorney General,
fled the brief for respondent.
Lagesen, Presiding Judge, and James, Judge, and Haselton,
Summary: The trial court convicted defendant of first-degree
assault for stabbing a man. At sentencing, defendant agreed
that the state would have 90 days to submit a restitution
amount for the victim's medical bills and defendant would
then have 30 days to object to that amount. After
defendant's 30 days had elapsed, the trial court ordered
him to pay the requested amount. On appeal, defendant
contends that the court plainly erred in imposing the
restitution award because, under State v.
McClelland, 278 Or.App. 138, 372 P.3d 614, rev
den, 360 Or. 423 (2016), there is insufficient evidence
to support a finding that the claimed medical expenses were
reasonable. Held: The trial court did not plainly
err in imposing restitution, because its decision was based
on the parties' agreement to employ a procedure for
determining the appropriate amount of restitution, which does
not amount to an "obvious" error. See State v.
Clarke, 300 Or.App. 74, 80, P.3d (2019).
Or.App. 619] LAGESEN, P. J.
defendant waived his right to a jury trial, the trial court
convicted him of first-degree assault for stabbing a man. It
then sentenced him to 90 months' incarceration and
ordered him to pay $31, 220.56 in restitution to the stabbing
victim to compensate him for his medical expenses. On appeal,
defendant contends that the trial court plainly erred in
imposing the restitution award because, in his view, under
State v. McClelland, 278 Or.App. 138, 372 P.3d 614,
rev den, 360 Or. 423 (2016), there is insufficient
evidence to support a finding that the claimed medical
expenses were reasonable. The state responds that, in view of
the procedure to which the parties agreed at sentencing, the
court did not plainly err in imposing restitution, regardless
of whether the evidence in the record would be sufficient
under McClelland. The state also argues that we
should not exercise our discretion to correct any error. We
agree with the state on both points and, accordingly, affirm.
was staying with a friend, Millsap, who lived in one side of
a duplex. One night, defendant attacked the occupant of the
other side of the duplex, V. For reasons that were not clear
to anyone at the time, and that did not become any clearer at
trial, defendant stabbed V in the neck and back. V was
seriously injured and hospitalized in the intensive care unit
(ICU) as a result. The state charged defendant with
first-degree assault and three other offenses as a result of
the incident, and the trial court found him guilty on all
counts. All verdicts merged, resulting in a single conviction
for first-degree assault.
sentencing, the state did not yet have the information needed
to request restitution for V's medical expenses, and the
parties agreed to a procedure for determining restitution.
The state requested that it have 90 days to submit the
restitution amount for the victim's medical bills, which
it explained amounted to "thousands and thousands of
dollars." The court agreed to "hold restitution
open for 90 days." Defendant asked to "have 30 days
to object to the restitution figure once it comes in,"
and that, "if we do have a hearing on that, would the
Court allow [defendant] to appear either by telephone or by
simultaneous video transmission." The [300 Or.App. 620]
court confirmed that defendant would have 30 days to object
and that it would "allow [defendant] to appear in any
fashion that he wishes" and "that is feasible based
on what the Department of Corrections can put together."
the 90-day period, the state filed a written motion to amend
the judgment to include $31, 220.56 payable to V. In the
affidavit supporting the motion, the prosecutor represented
that, through the filing, she had notified defendant, through
his lawyer, of the restitution request. With the motion, the
prosecutor submitted an additional document stating that the
supporting documentation for the award was attached that
indicated that those materials were "DISCOVERED" to
defendant. After more than 30 days had elapsed
without objection from defendant, the trial court entered an
order granting the motion and, thereafter, entered an amended
judgment containing the restitution award.
appeal, defendant contends that the trial court plainly erred
by imposing restitution in the absence of evidence that the
claimed medical expenses were reasonable. The state argues in
response (among other things) that any error is not plain in
view of the procedure to which the parties agreed at
sentencing and that, alternatively, we should not exercise
our discretion to correct any error in view of that
error is 'plain' if it is (1) of law, (2) obvious and
not reasonably in dispute, and (3) it appears on the record
such that there is no need to choose among competing
inferences." State v. Clarke, 300 Or.App. 74,
80, ___ P.3d ___ (2019) (second and third internal quotation
in view of the procedure embraced by the parties at
sentencing, any error in imposing restitution is not plain.
The parties agreed that the state would submit the amount,
that defendant would have 30 days to object, and that there
would be further proceedings if needed to account for the
objection. The trial court imposed the restitution award only
after defendant did not object (as the parties had [300
Or.App. 621] contemplated). Although the file does not
contain evidence that meets the standard in
McClelland, it is not "obvious" that the
law precludes a trial court from imposing restitution without
such evidence where, as here, the parties at sentencing elect
to employ a procedure for determining the appropriate amount
of restitution. In particular, nothing on the face of ORS