State v. Keen ( 2020 )

89
Submitted April 2; remanded for resentencing; otherwise affirmed May 6, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
SUSAN LYNN KEEN,
Defendant-Appellant.
Coos County Circuit Court
18CR38858; A168836
466 P3d 95
Martin E. Stone, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Francis C. Gieringer, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and Powers, Judge, and
Kamins, Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
90 State v. Keen
PER CURIAM
Defendant appeals a judgment of conviction for
reckless driving, ORS 811.140, and resisting arrest, ORS
162.315. On appeal, she argues that the trial court plainly
erred in failing to acquit her on the resisting arrest charge.
We reject that argument without discussion. Defendant
also contends that the court erred in imposing a condition
of probation requiring her to report changes of address to
the Department of Motor Vehicles within 10 days, which the
court imposed in connection with each count of conviction.
That condition was not announced in open court during
sentencing but later appeared in the judgment. Defendant
contends that it is not reasonably related to the offense.
The state responds that we need not address that conten-
tion because the court’s failure to announce the condition in
open court entitles defendant to relief regardless.
We agree that the condition was not properly imposed
because it was not announced in open court. Defendant con-
tends that the proper remedy here is to excise the condition.
The state responds that the remedy is to remand for resen-
tencing. In similar cases, we have concluded that a remand
for resentencing is appropriate. See, e.g., State v. Anotta, 302
Or App 176, 460 P3d 543 (2020) (remanding for resentenc-
ing when special probation conditions were not announced
in open court); State v. Bowden, 292 Or App 815, 818-19, 425
P3d 475 (2018) (remanding for resentencing where invalid
condition of probation was imposed). On remand, the par-
ties may raise, and the court may address, whether and how
the condition is one that is reasonably related to defendant’s
offenses of conviction.
Remanded for resentencing; otherwise affirmed.