STATE OF OREGON v. JOSEPH LEE UMPHERY (2011)

Court of Appeals of Oregon.

STATE OF OREGON, Plaintiff-Respondent, v. JOSEPH LEE UMPHERY, Defendant-Appellant.  Deschutes County Circuit Court

08FE0538MA

Decided: February 23, 2011

Peter Gartlan, Chief Defender, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.   John R. Kroger, Attorney General, David B. Thompson, Interim Solicitor General, and Kristen G. Williams, Assistant Attorney General, filed the brief for respondent.   Before Brewer, Chief Judge, and Gillette, Senior Judge.   Defendant was convicted of a variety of offenses arising out of an automobile accident that he caused by driving at a high rate of speed while under the influence of alcohol.   At defendant's sentencing hearing, the prosecutor informed the court that the state was seeking $383,667.97 in restitution on behalf of an insurance company, together with an additional $1,089.40 in restitution for one of defendant's victims.   Defendant's counsel replied:  “Your honor, I don't think that [defendant] is opposed to paying the reasonable medical costs of the victims, but absent a more detailed showing or cost breakdown, I think that we would prefer to have a restitution hearing in order to at least be able to parse out which of these things is medically related and which of these is property related and how much of this is insurance requested.”   The trial court agreed that “there needs to be a restitution hearing[.]  * * * This is a significant amount of money so we can't just skim right over that.   We will have a restitution hearing unless the parties can agree to an amount.”   The court then continued with defendant's sentencing.   After imposing incarcerative sentences, the court stated that “now restitution, as we discussed earlier in this hearing, is going to be left open because of the amount requested and, frankly, the lack of detail.”   However, the court did not hold a restitution hearing, but ultimately imposed, in a written judgment, restitution in the amounts of $383,667.97 in favor of the insurance company, and $1,089.40 for the victim.   ORS 137.106 governs the imposition of restitution as a sanction upon a person's conviction for a crime.   That statute provides, in pertinent part:  “(1) 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, prior to the time of sentencing, 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 include one of the following in the judgment:  “ * * * * * “(5) If the defendant objects to the imposition, amount or distribution of the restitution, the court shall allow the defendant to be heard on such issue at the time of sentencing or at the time the court determines the amount of restitution.”