State v. Riverman

                                      388

Argued and submitted June 11, 2021; supplemental judgment reversed in part,
        remanded for resentencing, otherwise affirmed June 15, 2022


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   STEVEN DAVID RIVERMAN,
                       Defendant-Appellant.
                  Multnomah County Circuit Court
                       18CR85038; A172709
                                   

     Defendant appeals from a supplemental judgment imposing restitution,
following his convictions for fourth-degree assault and recklessly endangering
another person. Defendant asserts, among other arguments, that the trial court
plainly erred in imposing restitution for the victim’s hospital and chiropractic
expenses because there was insufficient evidence to demonstrate that those
expenses were reasonable. The state concedes that the trial court plainly erred
but contends that the Court of Appeals should not exercise its discretion to cor-
rect that plain error. Held: The court accepted the state’s concession that the
trial court plainly erred in imposing restitution for the hospital and chiropractic
expenses when the state did not establish that those expenses were reasonable,
and the court exercised its discretion to correct the error.
    Supplemental judgment reversed in part; remanded for resentencing; other-
wise affirmed.



    Leslie M. Roberts, Judge.
   Emily P. Seltzer, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Gregory A. Rios, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Benjamin Gutman, Solicitor General,
and Colm Moore, Assistant Attorney General.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
    POWERS, J.
   Supplemental judgment reversed in part; remanded for
resentencing; otherwise affirmed.
Cite as 

 (2022)                              389

        POWERS, J.
         In this criminal case, defendant appeals from a
supplemental judgment imposing restitution, following his
convictions for fourth-degree assault and recklessly endan-
gering another person. Defendant asserts, among other
arguments, that the trial court plainly erred in imposing
restitution for the victim’s hospital and chiropractic expenses
because there was insufficient evidence to demonstrate that
those expenses were reasonable. He does not challenge the
restitution awarded for lost wages. The state concedes that
the trial court plainly erred in imposing restitution for the
hospital and chiropractic expenses but contends that we
should not exercise our discretion to correct that plain error
because it would severely undermine the purposes of preser-
vation. For the following reasons, we agree with the parties
that the trial court plainly erred in imposing restitution for
the hospital and chiropractic expenses when the state did
not establish that those expenses were reasonable, and we
exercise our discretion to correct the error. That conclusion
obviates the need to address defendant’s remaining argu-
ments. Accordingly, we reverse the supplemental judgment
in part, remand for resentencing, and otherwise affirm.
         We review a trial court’s legal conclusions regard-
ing restitution for legal error. State v. Benz, 

,
368, 

 (2017). In so doing, we are bound by the
trial court’s findings of fact if they are supported by any evi-
dence in the record. State v. Lobue, 

, 

, rev den, 

 (2020). We recount the facts in
accordance with that standard.
         Defendant pleaded guilty to and was convicted of
fourth-degree assault and recklessly endangering another
person after being involved in a car crash that injured the
victim. At the restitution hearing, the state presented tes-
timony from the victim and four documents from the vic-
tim’s insurers and medical providers to support its restitu-
tion request. The victim testified about his injuries, medical
expenses, and lost wages that resulted from the car crash.
He confirmed that he had insurance that had paid for his
medical bills, that he had paid his copays, and that the four
documents from the insurers and medical providers were
390                                        State v. Riverman

addressed to him. The state’s four exhibits consisted of an
“Explanation of Benefits” from Providence Health Plans,
two “Statement of Accounts” from Legacy Emanuel Hospital,
and an “Account Ledger” from the victim’s chiropractor.
One of the Legacy Emanuel Hospital Statement of Accounts
showed that $8,407.91 was “due from patient.” The chiro-
practor’s Account Ledger showed a balance of $1,446.98. The
state did not present evidence as to the reasonableness of the
hospital and chiropractic expenses, and defendant did not
argue that the state failed to establish that those expenses
were reasonable. Ultimately, the trial court entered a sup-
plemental judgment that imposed $10,589.89 in restitution,
which consisted of $8,407.91 in expenses related to the vic-
tim’s hospital visit, $1,446.98 in chiropractic expenses, and
$735.00 in lost wages.
         On appeal, defendant challenges the imposition of
$8,407.91 in hospital expenses and $1,446.98 in chiropractic
expenses. He does not challenge the imposition of $735.00
in restitution for lost wages. In two assignments of error,
defendant contends, among other arguments, that the trial
court plainly erred in imposing restitution for the hospital
and chiropractic expenses because the state did not present
sufficient evidence that the amount of those bills was rea-
sonable. He asks us to exercise our discretion to correct that
plain error given the gravity of the error and the interests of
justice. The state concedes that the trial court plainly erred
in imposing restitution because the evidence was insuffi-
cient to establish reasonableness. The state asserts, how-
ever, that we should decline to exercise our discretion to cor-
rect the error because, had defendant alerted the trial court
and the state that he was objecting to the reasonableness of
the medical bills, the state would have had the opportunity
to develop the record on that point.
        To qualify for plain-error review under ORAP 5.45,
an error must be: (1) an error of law; (2) obvious, i.e., not
reasonably in dispute; and (3) apparent on the record with-
out requiring an appellate court to choose among compet-
ing inferences. See, e.g., State v. Vanornum, 

, 

 (2013); Ailes v. Portland Meadows, Inc.,

, 

 (1991). If the three-pronged
plain-error test has been satisfied, we then must decide
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whether to exercise our discretion to review the error and
explain our reasons for doing so. Vanornum, 

(explaining that “discretion entails making a prudential
call that takes into account an array of considerations, such
as the competing interests of the parties, the nature of the
case, the gravity of the error, and the ends of justice in the
particular case”). We agree with the parties’ assessment
that the trial court plainly erred in imposing restitution
regarding the hospital and chiropractic expenses because
all three criteria have been met. That is, whether the trial
court complied with the restitution requirements in ORS
137.106 is a question of law, it is not reasonably in dispute
in this case, and we need not go outside the record or choose
between competing inferences to conclude that the trial court
erred.
         There are three prerequisites to a restitution order:
(1) criminal activities, (2) economic damages, and (3) a causal
relationship between the two. State v. Pumphrey, 

, 

 (2014), rev den, 

 (2015)
(analyzing ORS 137.106(1) and ORS 31.710(2)(a) and setting
out the requirements for a restitution order). A defendant
“may be ordered to pay restitution for a victim’s objectively
verifiable monetary losses, including ‘reasonable’ medi-
cal and hospital charges that were ‘necessarily incurred.’ ”
State v. Dickinson, 

, 680, 

 (2019);
ORS 31.705; ORS 137.103(2)(a) (generally adopting the defi-
nition of “economic damages” in ORS 31.705). At the time
of the restitution hearing in this case, there was “no pre-
sumption that medical or hospital charges are reasonable.”1
Dickinson, 298 Or App at 683. Nor may the sentencing court
rely on common sense alone to assess the reasonableness of
medical or hospital charges; rather, the state must present
sufficient evidence for the court to make a determination on
reasonableness that is supported by the evidence. See State

    1
      Although not applicable to this case, ORS 137.106(1) was amended during
the 2022 legislative session and will provide, in part:
        “(c) At a restitution proceeding, economic damages will be presumed rea-
    sonable if the damages are documented in the form of a record, bill, estimate
    or invoice from a business, health care entity or provider or public body as
    defined in ORS 174.109.”
Or Laws 2022, ch 57, § 1. That amendment will be effective January 1, 2023.
392                                         State v. Riverman

v. McClelland, 

, 

, rev den,

 (2016) (explaining that a “finder of fact cannot be
presumed to know what is a ‘reasonable’ charge for medical
services based on [its] own experience and without further
evidence, particularly given that many medical services
are paid by third parties and insurance companies”). As
the state correctly recognizes, given this court’s restitution
cases, it is obvious that the evidence adduced at the restitu-
tion hearing was insufficient to establish reasonableness.

        Even where an error is plain, we must further deter-
mine whether to exercise our discretion to correct it. Ailes,

. In so deciding, we consider the competing
interests of 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. 

 at 382 n 6.

         In this case, we exercise our discretion to correct the
error given the substantial amount of restitution awarded
and because the interests of justice weigh against requir-
ing a defendant to pay an obligation that is unsubstantiated
by the record. See State v. Martinez, 

,

 (2012) (exercising discretion to correct a plainly
erroneous restitution award). The gravity of the error here
is substantial: defendant challenges nearly $10,000 in res-
titution. Further, we see no indication that defendant made
a “strategic choice” to reserve his specific arguments for
appeal. See State v. Fults, 

, 

 (2007)
(identifying the possibility that a defendant made a “strate-
gic choice” as weighing against the exercise of discretion to
review for plain error). Although the state argues that we
should decline to exercise our discretion because plain-error
review would severely undermine the purposes of preser-
vation, “we have consistently exercised discretion to correct
plain errors in restitution awards, even where a defendant’s
objection below was vague or nonexistent.” Benz, 289 Or
App at 371-72 (collecting cases). Accordingly, we reverse the
portion of the supplemental judgment awarding restitution
for the victim’s hospital and chiropractic expenses, and we
remand for resentencing.
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 (2022)                        393

         Supplemental judgment reversed in part; remanded
for resentencing; otherwise affirmed.