State v. Dixon

558                 January 29, 2025              No. 55

        IN THE COURT OF APPEALS OF THE
                STATE OF OREGON

                STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
                SHANE RAY DIXON,
                 Defendant-Appellant.
              Marion County Circuit Court
                 21CR53906; A179644

  Sean E. Armstrong, Judge.
  Submitted October 30, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anne Fujita Munsey, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jordan R. Silk, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, Kamins, Judge, and
DeVore, Senior Judge.
  KAMINS, J.
  Supplemental judgment reversed and remanded.
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 (2025)                                                 559

           KAMINS, J.
         Defendant appeals from a supplemental judgment
imposing $25,897.83 in restitution for medical costs. The
state concedes that the record does not permit a finding that
the medical expenses ordered as restitution were necessarily incurred. ORS 137.106(1)(a) (2022); ORS 137.103(2); ORS
31.705(2)(a). We agree and accept the concession.1
         The remaining issue on appeal is the correct disposition. The state contends that we should remand for resentencing to allow the state to present additional evidence in
support of restitution, and to allow the trial court to consider
additional sentencing options, such as imposing a compensatory fine. State v. Edson, 

, 

(1999) (remand is required where “there remain options that
the trial court permissibly could adopt on resentencing”
(construing former ORS 138.222(5) (1997), which contained
almost identical language to current ORS 138.257)).
         Defendant maintains that, for two reasons, we
should reverse the supplemental judgment without remanding. First, defendant contends that the state should not
be given an additional opportunity to present evidence to
support a finding of necessity when the state had an opportunity to remedy that deficiency below. Second, defendant
argues that he has appealed only the supplemental judgment
imposing the restitution award, and thus we may not modify
the original judgment imposing the fine and sentence. ORS
138.257(1) (“Except as otherwise provided in this section,
the appellate court may affirm, reverse, vacate or modify
the judgment or order, or any part thereof, from which the
appeal was taken.” (Emphasis added.)) Thus, according to
defendant, the procedural posture of this case—that is, an
    1
      At the restitution hearing, the state called a single witness: a recovery specialist employed by a health care provider whose role is to “recover funds when
there’s third-party liability for Medicare policies.” He provided a medical payment summary setting out billing codes supplied by the hospital and testified
that their review of the coding indicated that there was potential liability from a
third-party, i.e., defendant. His testimony about the medical expenses incurred
on behalf of the victim was limited to explaining the medical coding that indicated an assault occurred, that there were injuries to three different parts of the
body, and that “once you have an initial encounter for [an injury] any subsequent
treatment after that date would be considered related until otherwise verified
different.”
560                                            State v. Dixon

appeal from a supplemental judgment whose only provision
is the legally erroneous imposition of restitution—precludes
resentencing.
         We have jurisdiction over this appeal pursuant to
ORS 138.257(1). Because the erroneous imposition of restitution is a sentencing error, the appropriate disposition in
this case is governed by ORS 138.257(4)(a)(B), which provides that the appellate court “shall” remand the case to
the trial court “[i]f the appellate court determines that the
trial court, in imposing or failing to impose a sentence in
the case, committed an error that requires resentencing.”
Cf. Edson, 

. Whether an order of restitution
that lacks sufficient supporting evidence is an “error that
requires resentencing” depends on whether “there remain
options that the trial court permissibly could adopt on resentencing.” Edson, 

.
         We agree with defendant that the state should not
be entitled to another opportunity to develop a record sufficient to support an order of restitution. Defendant objected
to the sufficiency of the evidence below, preserving this
claim of error and giving the state an opportunity to correct
the deficiency. See State v. Tippets, 

, 434 n 3,

 (2010) (remanding for new evidentiary hearing when defendant did not object to the sufficiency of the
evidence before the trial court and as a result the state did
not have an opportunity to present additional evidence in
support of restitution); cf. State v. Clemente-Perez, 

, 

 (2015) (“[T]he primary purposes of
the preservation rule are to allow the trial court to consider
a contention and correct any error, to allow the opposing
party an opportunity to respond to a contention, and to foster a full development of the record.”).
         We are not persuaded, however, that there are no
permissible sentencing options available to the trial court
on remand. The parties have not addressed the impact of
ORS 137.106 (permitting entry of supplemental judgment
for restitution) and 138.257(4)(b) (a sentencing court may
“impose a new sentence for any conviction” upon remand)
on the finality of the original judgment and sentence.
Accordingly, we leave it to the sentencing court to evaluate
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in the first instance whether there are any permissible sentencing options that could be imposed on remand. Edson,

.
        Supplemental judgment reversed and remanded.