313 ORAPP 390 - State v. Fugate

                                   390

 Submitted June 2, affirmed July 14, petition for review denied November 4,
                             2021 (

368 Or 702

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                   KYLE JOSEPH FUGATE,
                     Defendant-Appellant.
                  Douglas County Circuit Court
                     19CR57946; A172847

493 P3d 574



  Ann Marie Simmons, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
  PER CURIAM
  Affirmed.
Cite as

313 Or App 390

 (2021)                            391

        PER CURIAM
         Defendant appeals a judgment of conviction for
second-degree assault and assaulting a public safety officer.
He assigns error to (1) the imposition of durational departure sentences based on an aggravating factor that, defendant contends, was not alleged by the state; (2) the imposition of a 36-month post-prison supervision (PPS) term on
the second-degree assault that should have been 0 months;
and (3) the imposition of restitution for the victim’s medical expenses reimbursed at workers’ compensation rates.
The state responds that the two claims of sentencing error
are moot, because the trial court amended the judgment to
address them, and the restitution award is reasonable and
consistent with State v. Workman,

300 Or App 622

455 P3d 566

 (2019). As we explain below, we agree with the state
and, therefore, affirm.
         After defendant filed his opening brief, the trial
court amended the judgment in two ways. First, the court
amended the judgment to eliminate the reliance on the
contested aggravating factor and to specify reliance on factors alleged by the state and found by the court at the sentencing hearing. Second, the court removed the 36-month
PPS term on defendant’s second-degree assault conviction.
Consequently, defendant’s claims of sentencing error are
moot, and, for that reason we do not review them on the
merits.
         Next, defendant contends that the trial court erred
in imposing restitution for the victim’s medical expenses,
because the record lacked evidence that the medical charges
correlated to market rates and were thus reasonable. The
state responds that the court’s imposition of restitution was
reasonable under Workman,

300 Or App at 625

 (concluding
that medical expenses that are paid at workers’ compensation rates are presumptively reasonable because the statutory “worker’s compensation fee schedules reflect customary
market rates for medical services”). The state is correct.
         The record establishes that the medical expenses
that Douglas County paid were at the workers’ compensation rates as “a self-insured entity for purposes of workers’
392                                        State v. Fugate

compensation.” Because the county paid the victim’s medical
costs pursuant to the workers’ compensation fee schedules,
those costs are presumptively reasonable under Workman.
        Affirmed.