S U M M A R Y O P I N I O N
¶1 Appellant Brian Eugene Beecher was tried by jury and convicted of Assault and Battery with a Deadly Weapon (21 O.S.2011, § 652), in the District Court of Kingfisher County, Case No. CF-2018-84. The jury recommended as punishment imprisonment for twenty (20) years. The trial court sentenced accordingly, and ordered Appellant to pay $250.00 Victim's Compensation Fund Assessment, a $150.00 DNA fee, a $250.00 presentence investigation fee and $24,005.43 in restitution.1 It is from this judgment and sentence that Appellant appeals.
¶2 Appellant raises the following propositions of error in support of his appeal:
I. Because the State did not introduce any evidence of economic losses incurred by the victim, the trial court erred by awarding restitution.
II. By failing to object to the improper award of restitution, defense counsel failed to effectively represent [Appellant].
¶3 After thorough consideration of these propositions and the entire record before us on appeal, including the original record, transcripts, and briefs of the parties, we have determined the case should be remanded for a proper restitution order.
¶4 In Proposition I, Appellant argues the trial court erred in ordering $24,005.43 in restitution be paid to the insurance carrier Blue Cross Blue Shield of Oklahoma. Appellant admits he raised no contemporaneous objection to the restitution order. In the absence of a timely objection, our review on appeal is for plain error. White v. State, 2019 OK CR 2, ¶ 22, 437 P.3d 1061, 1070. Under the plain error test set forth in Simpson v. State, 1994 OK CR 40, ¶¶ 10, 26, 30, 876 P.2d 690, 694, 699, 701, this Court determines whether the appellant has shown an actual error, which is plain or obvious, and which affects his or her substantial rights. This Court will only correct plain error if the error seriously affects the fairness, integrity, or public reputation of the judicial proceedings or otherwise represents a miscarriage of justice. Id. See also Lee v. State, 2018 OK CR 14, ¶ 4, 422 P.3d 782, 785; Stewart v. State, 2016 OK CR 9, ¶ 12, 372 P.3d 508, 511.
¶5 Appellant argues the restitution order was plain error as the State's request for restitution did not show the out-of-pocket expenses incurred by the victim, Mr. Massey, but instead was a request for restitution for the insurance carrier Blue Cross Blue Shield of Oklahoma. The State agrees the trial court erred in its restitution order listing Blue Cross Blue Shield as the victim, as Mr. Massey, who was shot three (3) times by Appellant, is the victim under the applicable state statutes.
¶6 Restitution procedures are set forth in 22 O.S.2011, § 991a. See also Logsdon v. State, 2010 OK CR 7, ¶¶ 9-10, 231 P.3d 1156, 1162. Generally, section 991a(A)(1)(a) provides that restitution may be ordered only to the extent that the damage to the victim is determined with "reasonable certainty." A crime victim may be compensated by "restitution" for up to three times the amount of economic loss suffered by the victim as a direct result of the criminal act of the defendant. 22 O.S.2011, § 991f(A)(1). "Economic loss" includes the actual financial detriment suffered by the victim and may include such things as medical expenses, damage to or loss of real or personal property, and loss of earnings reasonably incurred as a direct result of the defendant's criminal act. 22 O.S.2011, § 991f(A)(3).
¶7 The Restitution Recovery Form submitted by the State lists Blue Cross Blue Shield of Oklahoma as the victim, and states in part that it provided $24,005.43 in benefits to Mr. Massey for "Air Evac" and other medical expenses. However, under the applicable statutory language, Blue Cross Blue Shield of Oklahoma was not the "victim" as contemplated by statute, as it did not suffer an economic loss as a direct result of a criminal act of another person. Instead, the insurance company paid out funds pursuant to a health insurance contract it had entered into with a group of individuals that included Mr. Massey. Accordingly, it was plain error for the District Court to order restitution be paid to the insurance company. The court's order is vacated, and the District Court is directed to conduct new proceedings to determine a proper restitution order.
¶8 In Proposition II, Appellant argues that trial counsel was ineffective for failing to object to the restitution order. As addressed in Proposition I, the court's restitution order was plain error and we have ordered the case be remanded to the District Court for a proper restitution order. Appellant's request for relief based upon counsel's failure to raise an objection is moot in light of our disposition of Proposition I.
¶9 The JUDGMENT and SENTENCE is AFFIRMED. The District Court's restitution order is VACATED and the case REMANDED for a proper determination of restitution in accordance with this opinion. Pursuant to Rule 3.15, Rules of the Oklahoma Court of Criminal Appeals, Title 22, Ch.18, App. (2022), the MANDATE is ORDERED issued upon the delivery and filing of this decision.
AN APPEAL FROM THE DISTRICT COURT OF KINGFISHER COUNTY
THE HONORABLE PAUL K. WOODWARD, DISTRICT JUDGE
APPEARANCES AT TRIAL
APPEARANCES ON APPEAL
MICHAEL J. AMEND
MARK P. HOOVER
OPINION BY: LUMPKIN, J.
ROWLAND, P.J.: Concur
HUDSON, V.P.J.: Concur
LEWIS, J.: Concur
1 Appellant must serve 85% of his sentence before becoming eligible for consideration for parole. 21 O.S.Supp.2015, § 13.1.