State v. Miller , 299 Or. App. 515 ( 2019 )

515
Submitted July 12; remanded for resentencing, otherwise affirmed
September 18, 2019; petition for review denied January 16, 2020 (366 Or 97)
STATE OF OREGON,
Plaintiff-Respondent,
v.
PAULA MARIE MILLER,
Defendant-Appellant.
Clackamas County Circuit Court
CR1502018; A166454
450 P3d 578
Thomas J. Rastetter, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mark Kimbrell, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the briefs for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Landau, Senior Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
516 State v. Miller
PER CURIAM
Following a jury trial, defendant was convicted of
unlawful delivery of methamphetamine, ORS 475.890.1 Defen-
dant challenges probation conditions that appeared for the
first time in the judgment, including conditions prohibiting
her from: (1) applying for or using a medical marijuana reg-
istry card and consuming medicinal or recreational mari-
juana; (2) using or possessing controlled substances; (3) fre-
quenting places where narcotics are used, sold, or kept; and
(4) possessing any narcotics paraphernalia and associating
with any person known to use, sell, or possess illegal drugs
or narcotics.2 Defendant argues that those conditions are
invalid because any special condition imposed relating to
medical marijuana must be imposed in the same manner
as probation conditions relating to prescription medication.
ORS 137.540(1)(b); ORS 137.542(2). Defendant also argues
that the rules of preservation do not apply.
The state concedes that the condition prohibiting
defendant’s participation in the medical marijuana pro-
gram is invalid under ORS 137.542(2). The state further
concedes that the other conditions are invalid if defendant
holds a medical marijuana card and that preservation is not
required. We agree with the state that, if defendant holds a
medical marijuana registry card, the conditions are invalid
and that preservation is not required because the conditions
appeared for the first time in the judgment. State v. Rhamy,
294 Or App 784, 431 P3d 103 (2018) (concluding that the
trial court erred in imposing a probation condition prohibit-
ing the defendant from applying for or using a registry iden-
tification card pursuant to the Oregon Medical Marijuana
Act (OMMA) in violation of ORS 137.542(2) and that preser-
vation principles did not apply when the condition appeared
for first time in judgments); State v. Bowden, 292 Or App
1The jury found defendant guilty of possession of methamphetamine and
unlawful delivery of methamphetamine, but the trial court merged the guilty
verdict on possession of methamphetamine into the guilty verdict on unlawful
delivery of methamphetamine.
2
In supplemental briefing, defendant raised an additional assignment of
error arguing that the trial court plainly erred in instructing the jury that it
could return nonunanimous verdicts. We reject that assignment of error on the
merits.
Cite as 299 Or App 515 (2019) 517
815, 818-19, 425 P3d 475 (2018) (concluding that a “sentenc-
ing court does not have the discretion to impose a probation
condition that runs counter to ORS 137.540(1)(b) and ORS
137.542”); see also State v. Kilgore, 295 Or App 602, 604-05,
435 P3d 817 (2019).3
We turn to the appropriate disposition. Defendant
asks that we reverse the challenged probation conditions.
The state responds that, other than the condition prohibit-
ing defendant’s participation in the medical marijuana pro-
gram, because the remaining conditions are invalid only if
defendant is a holder of an OMMA card, we should remand
for resentencing for the trial court to determine defendant’s
OMMA status and resentence in conformance with ORS
137.542. We agree with the state. Kilgore, 295 Or App at
604-05.
Remanded for resentencing; otherwise affirmed.
3
We express no opinion on the state’s concession that, regardless of defen-
dant’s OMMA status, the condition prohibiting defendant’s participation in the
medical marijuana program is invalid under ORS 137.542(2) because the issue
can be addressed in the first instance on remand.