State v. Anotta ( 2020 )

176
Submitted December 20, 2019; remanded for resentencing, otherwise affirmed
February 5; petition for review denied June 4, 2020 (366 Or 552)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JEDIDIH ALAKA ANOTTA,
Defendant-Appellant.
Clatsop County Circuit Court
17CR44131; A168048
460 P3d 543
Cindee S. Matyas, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
Cite as 302 Or App 176 (2020) 177
PER CURIAM
Defendant appeals from a judgment of conviction
for driving under the influence of intoxicants and reckless
driving. On appeal, in four assignments of error, defendant
challenges special conditions of probation imposed in the
judgment, which we discuss below. We reject defendant’s
first assignment of error without discussion.
Defendant challenges the following special proba-
tion conditions, which require that defendant:
“Not knowingly associate with any person known to
use, sell or possess illegal drugs or with any other individ-
ual the Court or probation officer designates, and not visit
or remain at places where illegal drugs are used, kept or
sold.
“* * * [D]efendant is further prohibited from present-
ing any prescription to be filled without first advising the
probation officer of the name of the doctor issuing the pre-
scription, where defendant intends to have the prescription
filled, and what the drug is (except in the case of medical
emergency, wherein defendant shall advise the probation
officer as soon as possible). * * *
“* * * * *
“Submit to breath, blood, saliva or urine testing at the
direction of probation officer, court monitor, Court, evalua-
tor, or treatment provider, and pays [sic] all costs.”
Defendant argues that the trial court erred in impos-
ing those special conditions, because it did not announce
them in open court at sentencing.1
The state concedes that, with the exception of the
condition that requires defendant to submit to and pay for
testing, the trial court erred in imposing those terms with-
out announcing them in open court. We agree with and
accept the state’s concession with respect to those probation
conditions.
1
Defendant also argues that the trial court erred because the special condi-
tions are not both reasonably related to the crime and imposed for the protection
of the public or reformation of the offender. State v. Borders, 293 Or App 791,
794, 429 P3d 1067 (2018). Based on our disposition on other grounds, we do not
address that argument.
178 State v. Anotta
For the probation condition that requires defendant
to submit to and pay for testing, the state argues that any
error of the trial court in imposing that condition as a spe-
cial condition is harmless, because the trial court imposed
the exact same condition as a general condition of probation
that defendant does not challenge on appeal. We agree with
the state and reject defendant’s challenge to that special
condition of probation.
What remains is our disposition. Defendant argues
that we should not remand for resentencing and should
instead direct the court to enter a corrected judgment that
omits the unlawful probation conditions. In similar cases,
we have concluded that a remand for resentencing is appro-
priate. See, e.g., State v. Pickerel, 300 Or App 392, 453 P3d
947 (2019) (remanding for resentencing when probation
violation fee was not announced in open court); State v.
Bowden, 292 Or App 815, 819, 425 P3d 475 (2018) (remand-
ing for resentencing when invalid special probation condi-
tions were imposed). See also ORS 138.257(4)(a)(B) (“The
appellate court shall remand the case to the trial court * * *
[i]f the appellate court determines that the trial court, in
imposing or failing to impose a sentence in the case, com-
mitted an error that requires resentencing.”). We conclude
that it is also appropriate to remand in this case.
Remanded for resentencing; otherwise affirmed.