618
Submitted November 5, 2018, affirmed November 20, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
DAVID MICHAEL COONS,
Defendant-Appellant.
Polk County Circuit Court
17CR04281; A164535
455 P3d 564
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 P3d 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,
451 P3d
1022 (2019).
Affirmed.
Norman R. Hill, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie J. Hortsch, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Haselton, Senior Judge.
LAGESEN, P. J.
Affirmed.
Cite as 300 Or App 618 (2019) 619
LAGESEN, P. J.
After 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 P3d 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.
Defendant 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.
At 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
620 State v. Coons
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.”
Within 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.1 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.
On 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 procedure.
“An 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,
451 P3d 1022
(2019) (second and third internal quotation marks omitted).
Here, 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
1
Although the cover sheet for the supporting documentation was placed in
the trial court file, the supporting documentation does not appear in the file.
Cite as 300 Or App 618 (2019) 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 137.106, or any other statute of which we are
aware,2 plainly indicates that the legislature intended to
foreclose a sentencing court from imposing an unobjected- to amount of restitution.
Even if the alleged error could be considered to be
plain, however, we would decline to exercise our discretion
to correct it. As the state points out, even absent particularized evidence about the nature of V’s medical expenses, it is
inferable from the record that defendant’s conduct gave rise
to significant medical expenses—V had to be hospitalized
in the ICU for stab wounds. Defendant’s acceptance of the
proposed procedure at sentencing played a role in the court
imposing restitution pursuant to that procedure. Defendant
had a fair opportunity—30 days—to contest the requested
restitution. And his failure to do so deprived the state of
the opportunity to further develop the record supporting the
requested restitution.
Affirmed.
2
Defendant has not identified any source of law that would plainly preclude
the procedure employed below.
