State v. Henry

                                       169

     Submitted February 25; supplemental judgment reversed in part and
   remanded, otherwise affirmed October 13, 2021; petition for review denied
                       February 3, 2022 (

)


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                   JASON MICHAEL HENRY,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      18CR68346; A171734
                                   

    Defendant appeals from a supplemental judgment awarding restitution,
arguing that the trial court (1) erred by ordering restitution for medical costs
stemming from the victim’s emergency department visit; (2) plainly erred by
ordering restitution for economic damages arising from criminal activity that
defendant did not plead guilty to, or admit to having committed; and (3) erred by
denying his motion for substitute counsel. Held: There was insufficient evidence
in the record to support the reasonableness of the medical costs; therefore, the
trial court erred in awarding restitution for those costs. The trial court, however, did not plainly err by ordering defendant to pay restitution for the victims’
economic damages. Further, the trial court did not abuse its discretion when it
denied defendant’s motion for substitute counsel.
    Supplemental judgment reversed in part and remanded; otherwise affirmed.



    Oscar Garcia, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen E. Daniels, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jordan R. Silk, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
    POWERS, J.
   Supplemental judgment reversed in part and remanded;
otherwise affirmed.
170                                             State v. Henry

        POWERS, J.
          Defendant appeals from a supplemental judgment
awarding restitution entered after he pleaded guilty to burglary in the first degree, ORS 164.225, and two counts of
unlawful use of a weapon, ORS 166.220. Defendant asserts
that the trial court (1) erred by ordering restitution for medical costs stemming from the victim’s emergency department
visit; (2) plainly erred by ordering restitution for economic
damages arising from criminal activity that defendant
did not plead guilty to, or admit to having committed; and
(3) erred by denying his motion for substitute counsel. For
the reasons explained here, we reverse the restitution award
for the medical costs stemming from the emergency department visit and otherwise affirm.
         On an evening in October, Archer was working on
his car in his driveway while his two teenage boys were playing football in the street with their friends. Defendant, who
spent the evening at a local bar, drove by Archer’s home. As
defendant passed, one of the teenagers waved at him and
exclaimed, “nice truck.” Defendant became enraged, pulled
his truck over, and then got out to chase the teenagers while
yelling threats at them. Defendant chased the teenagers
into Archer’s garage, where defendant grabbed a crowbar
and struck Archer’s son, B, injuring B’s hand and causing B
to hit his head. Archer subdued defendant temporarily, but
defendant was able to return to his truck and armed himself
with a firefighter-style axe. Defendant started approaching
the house again but was stopped by Archer, who held defendant at gunpoint until police arrived.
         As a result of the incident, B’s mother drove B to the
Kaiser Emergency Center where B was treated for an injury
to his hand and a concussion. B’s mother stayed home from
work for three days to monitor B’s injuries. His parents also
sought out counseling for B to help him process the event.
The state charged defendant with five crimes arising from
the incident: assault in the second degree, ORS 163.175;
burglary in the first degree, ORS 164.225; three counts of
unlawful use of a weapon, ORS 166.220(1)(a); menacing,
ORS 163.190; and criminal mischief in the first degree, ORS
164.365. Ultimately, defendant pleaded guilty to burglary in
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the first degree and two counts of unlawful use of a weapon,
and the state agreed to dismiss the remaining charges. The
trial court accepted the pleas, and the state later sought restitution for B’s and his parents’ economic damages.
         At the start of the restitution hearing, defendant’s
counsel told the trial court that defendant no longer wished
to be represented by him. When asked by the court what the
situation was, defendant complained that his lawyer
   “doesn’t want to represent me properly. He’s been telling
   me to sign the plea deal for 60 months which I was forced
   into doing, … and he just wants me to sign this restitution fee, because I am going to lose my ass, basically is what
   he told me.”

Defendant added that his counsel’s behavior was not very
professional, and that defendant did not want his current
counsel to represent him. Defendant also told the court that
his family was in the process of hiring a new lawyer; however, when asked for more details and whether the lawyer
was appearing for the restitution hearing, defendant said
that he did not know the lawyer’s name and that the lawyer
was not going to appear. The court informed defendant that
it ultimately would be the one to decide whether there would
be restitution, not defendant’s counsel. After clarifying with
defendant that he was “making an oral request to the Court
for a different lawyer,” the court denied defendant’s motion
to substitute counsel and proceeded with the restitution
hearing.
         The state requested $2,224.77 in restitution, which
consisted of B’s medical costs and counseling services paid
for by the Crime Victims’ Compensation Program (CVCP)
and his parents’ lost wages. In support of a restitution award,
the state presented an affidavit executed by a CVCP representative that explained how CVCP determines whether
crime victims are eligible for compensation and described
the awarded benefits and amounts that CVCP paid for B’s
medical costs. Along with the affidavit, the state also presented testimony from B’s parents describing the economic
damages their family incurred from having to miss work to
attend court hearings and care for B’s injuries.
172                                           State v. Henry

         Defendant objected to the restitution request.
Regarding B’s medical costs, defendant argued that there
was no evidence from CVCP or a medical provider to explain
why the expenses were incurred and whether the expenses
were reasonable. As to the amount requested for lost wages,
defendant argued that the time B’s mother took off work
was voluntary and that she had not been subpoenaed to
attend the court hearings. The state remonstrated that the
medical costs were inherently reasonable given their “modest amount.” Further, the state asserted that it was reasonable for B’s parents to take off work to attend court hearings
on behalf of their minor child. After reviewing the evidence,
the trial court ruled that the amount requested for restitution was reasonable and foreseeable, and ordered defendant
to pay $2,224.77 in restitution.
         On appeal, defendant first renews his argument
that the state failed to prove the reasonableness of the medical costs. Defendant asserts that the state did not present a
medical bill from B’s emergency department visit, and that
the evidence that CVCP paid the medical bill was not enough
to support a finding of reasonableness. Second, defendant
argues that the trial court erred in ordering him to pay
$827.53 in restitution for B’s medical costs and $689.28 in
restitution for B’s mother’s lost wages when she stayed home
with B, because they were based on damages caused by
the crimes to which he did not plead guilty. That is, defendant submits that he pleaded guilty only to burglary and
two counts of unlawful use of a weapon; however, because
he did not plead to assault or otherwise admit to causing
B any injury, the trial court erred in awarding restitution.
Defendant acknowledges, however, that he did not preserve
that argument and requests that we conduct plain-error
review. Relying on State v. Howard, 

, 

 (2018), defendant asserts that the trial court plainly
erred when it required him to “pay restitution for damages
that were not caused by his criminal activity.” Third, defendant argues that the court abused its discretion in denying
his motion for substitute counsel. Defendant argues that the
court summarily denied his motion and did not conduct a
fact-specific inquiry after being presented with a legitimate
complaint about his counsel.
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         In response, the state first asserts that there is
sufficient evidence in the record to support the trial court’s
finding that the amounts paid by CVCP were reasonable.
The state, however, acknowledges that in State v. J. M. E.,

, 

 (2019), we held that payment by CVCP—without more—does not permit a trial court
to find that the amount paid was reasonable for purposes
of a restitution award.1 Second, with regard to defendant’s
plain-error contention, the state asserts that his argument
overlooks the fact that “the first-degree burglary charge to
which defendant did plead guilty [to] specifically alleged that
‘during [that] offense the defendant caused or attempted to
cause physical injury to another person.’ ” (Emphasis omitted.) Therefore, because defendant did not “expressly deny
that allegation at the change of plea hearing,” the state contends that the conduct that injured B was encompassed in
defendant’s guilty plea to first-degree burglary. Third, the
state remonstrates that the court did not abuse its discretion by denying defendant’s motion for substitute counsel
because the court “permissibly concluded that defendant’s
complaints about existing counsel were not legitimate.”

        We review restitution orders for errors of law, and
we are bound by the trial court’s findings of fact if they are
supported by evidence in the record. State v. McClelland, 

, 

, rev den, 

 (2016).

           ORS 137.106(1)(a) provides, in part:
       “When a person is convicted of a crime, or a violation as
    described in ORS 153.008, that has resulted in economic
    damages, the district attorney shall investigate and present to the court … evidence of the nature and amount of
    the damages. … If the court finds from the evidence presented that a victim suffered economic damages, in addition
    to any other sanction it may impose, the court shall enter
    a judgment or supplemental judgment requiring that the
    defendant pay the victim restitution in a specific amount

    1
      In acknowledging that J. M. E. currently controls this case, the state
explains that it does not concede that J. M. E. was correctly decided when it concluded that CVCP’s “regulatory regime did not dictate that CVCP pay medical
expenses at or below market rates.” The state, however, does not ask us to revisit
J. M. E. in this case.
174                                             State v. Henry

   that equals the full amount of the victim’s economic damages as determined by the court.”
Under ORS 137.106(1)(a), there are three conditions that
must be satisfied to order restitution: (1) criminal activities,
(2) economic damages, and (3) a causal relationship between
the two. McClelland, 

. When the state is
seeking restitution for medical costs, it must prove that the
costs are reasonable. 

. Medical costs are reasonable if they are at, or below, the market rate for the respective costs. State v. Workman, 

, 

 (2019). A hospital bill, alone, is insufficient to prove
that the charges reflect the market rate; rather, some additional “testimony or evidence is required to support the reasonableness of the bill for the hospital or medical services.”

 at 623 (quoting McClelland, 

).
        Here, there is insufficient evidence in the record to
support the reasonableness of the medical costs paid for by
CVCP and therefore we accept the state’s concession that
J. M. E. controls the disposition of defendant’s first argument. The affidavit executed by CVCP did not establish
that the amounts paid were at, or below, the market rate.
Accordingly, we reverse that portion of the restitution award.
         Next, defendant argues that the trial court plainly
erred by ordering him to pay restitution for B’s medical costs
and his mother’s lost wages because those costs were not
based on damages caused by any crime that he was convicted of or admitted to having committed. To qualify for
plain-error review under ORAP 5.45, an error must be (1) an
error of law; (2) obvious and not reasonably in dispute; and
(3) apparent on the record without requiring the court
to choose among competing inferences. See, e.g., State v.
Vanornum, 

, 

 (2013); Howard,

. If an error meets that three-pronged test,
we must decide whether to exercise our discretion to review
the error and explain our reasons for doing so. Vanornum,

; see also Ailes v. Portland Meadows, Inc., 

, 382 & n 6, 

 (1991) (explaining that a
court’s decision to review an unpreserved error “should be
made with utmost caution” and identifying factors that the
court may consider, including “the competing interests of
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the parties; the nature of the case; the gravity of the error;
the ends of justice in the particular case; how the error came
to the court’s attention; and whether the policies behind
the general rule requiring preservation of error have been
served in the case in another way”).
         Under ORS 137.106(1)(a), a “court may only order
restitution for economic damages that were caused by the
defendant’s offense against the victim, or by defendant’s
other criminal activities.” State v. Kirkland, 

, 

 (2015). Criminal activities are defined as
“any offense with respect to which the defendant is convicted
or any other criminal conduct admitted by the defendant.”
ORS 137.103(1). Accordingly, “when determining what ‘criminal activities’ a defendant has committed, a court may consider only the crimes for which the defendant was convicted
or other conduct that the defendant has admitted, provided
that the defendant’s admission is unequivocal and clearly
reflected in the record.” Kirkland, 

.
         In Howard, we held that it was plain error for the
trial court to impose restitution for economic losses caused
by additional crimes “for which defendant was not convicted and to which he did not admit.” 

.
In that case, the defendant took jewelry from the home of
his girlfriend’s mother, and then pawned individual pieces
on different dates. 

. The defendant pleaded guilty
to theft-by-receiving on two separate dates; however, the
trial court awarded restitution for losses caused by alleged
thefts-by-receiving on several other dates, not just the two
for which the defendant pleaded guilty. 

. Because
the defendant limited his guilty plea to two specific dates,
we concluded that the trial court plainly erred in imposing
restitution for losses outside of those two dates included
within his plea and exercised our discretion to correct the
error. 

. This case, however, is distinguishable
from Howard.
         Here, defendant’s guilty plea to first-degree burglary sufficiently encompassed the conduct that resulted
in B’s injuries. The indictment charging defendant with
first-degree burglary alleged that “during the offense the
defendant caused or attempted to cause physical injury to
176                                                            State v. Henry

another person.” Defendant’s act of using a crowbar against
B is encompassed in that allegation and defendant did not
contest that allegation or otherwise limit his guilty plea.
Accordingly, the trial court did not plainly err by ordering
defendant to pay restitution for B’s and his mother’s economic damages.2
         Finally, we turn to defendant’s contention that the
trial court erred in denying his motion for substitute counsel. We review the trial court’s ruling on a motion to substitute counsel for abuse of discretion. State v. Olson, 

, 

 (2019). “A defendant moving
to substitute court-appointed counsel ‘has no right to new
appointed counsel in the absence of a legitimate complaint
about existing counsel.’ ” 

 (quoting State v. Smith, 

, 

 (2005)). A “legitimate complaint”
about a court-appointed lawyer is “one that is based on an
abridgment of a criminal defendant’s constitutional right
to counsel.” State v. Langley, 

, 

(1992), adh’d to on recons, 

, 

 (1993).
As such, “[a] simple loss of confidence or disagreement with
counsel’s approach to matters of strategy is not cause to substitute one appointed lawyer for another.” 

 Further, the
trial court “possesses discretion to determine the scope of
the inquiry necessitated by a particular complaint.” Olson,

.
         Here, the concerns expressed by defendant amounted
to a loss of confidence or disagreement with counsel’s
approach and did not rise to the level of a legitimate complaint about his counsel. At the restitution hearing, defendant argued that his counsel behaved in an unprofessional
manner when advising him. Defendant also explained that
counsel wanted him to sign the plea deal and agree to the
restitution amount. The trial court adequately considered
defendant’s concerns and explained that it would be determining whether there would be a restitution award, not

    2
       Defendant does not separately challenge the trial court’s award of restitution for lost wages that B’s mother incurred to take care of B after his injury. See
State v. Gerhardt, 

, 

 (2016) (holding that “restitution
may be awarded under ORS 137.106 if [a] defendant’s crime was a factual cause of
the victim’s economic damages and those damages were the reasonably foreseeable consequence of the crime”). Accordingly, we express no opinion on that issue.
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defendant’s counsel. Therefore, the trial court did not abuse
its discretion when it denied defendant’s motion for substitute counsel.
        Accordingly, we reverse and remand the supplemental judgment with respect to the medical costs stemming
from B’s emergency department visit, and otherwise affirm.
       Supplemental judgment reversed in part and
remanded; otherwise affirmed.