State v. Cunningham , 300 Or. App. 385 ( 2019 )

385
Submitted September 19; in Case No. 17CR43550, affirmed; in Case Nos.
17CR30472 and 14C40932, reversed and remanded October 30, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
AMANDA JUNE CUNNINGHAM,
Defendant-Appellant.
Marion County Circuit Court
17CR30472, 14C40932, 17CR43550;
A166938 (Control), A166939, A166940
451 P3d 270
David E. Leith, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erica Herb, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Leigh A. Salmon, Assistant Attorney
General, filed the brief for respondent.
Before Hadlock, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
In Case No. 17CR43550, affirmed. In Case Nos.
17CR30472 and 14C40932, reversed and remanded.
386 State v. Cunningham
PER CURIAM
In this consolidated appeal, defendant appeals a
judgment of conviction for unlawful delivery of metham-
phetamine (Case No. 17CR43550); a judgment of conviction
for unlawful possession of methamphetamine (Case No.
17CR30472); and a judgment of probation revocation (Case
No. 14C40932). She raises a single assignment of error in
each of the three cases.
In her first assignment of error, defendant asserts
that the trial court erred in denying her motion to suppress
evidence found in her car during an inventory in Case No.
17CR43550. We reject that assignment of error without
discussion.
In her second assignment of error, defendant con-
tends that the court erroneously denied her motion to sup-
press evidence that was discovered during an unlawful
search of her person in Case No. 17CR30472. The trial court
ruled that the search was unlawful but agreed with the
state’s “inevitable discovery” argument and denied defen-
dant’s motion on that basis. The state concedes, and we
agree, that the record does not support the trial court’s rul-
ing. Accordingly, in Case No. 17CR30472, we reverse and
remand.
Finally, in her third assignment of error, defendant
challenges the trial court’s revocation of her probation in
Case No. 14C40932. As the state acknowledges, the court
revoked defendant’s probation in that case, in part, based on
defendant’s conviction for possession of methamphetamine
in Case No. 17CR30472. The trial court did not indicate
whether it would have revoked probation in the absence of
that conviction. Therefore, we reverse and remand the pro-
bation violation judgment for the trial court to reconsider
its decision in light of our reversal in Case No. 17CR30472.
State v. Milnes, 256 Or App 701, 711, 301 P3d 966 (2013)
(reversing and remanding for reconsideration a probation
violation judgment predicated in part on conviction over-
turned on appeal).
In Case No. 17CR43550, affirmed. In Case Nos.
17CR30472 and 14C40932, reversed and remanded.