State v. Rose ( 2020 )

811
Submitted March 31; remanded for entry of judgment omitting condition that
defendant not use or possess alcohol on Count 1 in Case Number MI150079 and
Count 1 in Case Number 16CR02091, otherwise affirmed April 29, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
RICHARD ANDREW ROSE,
Defendant-Appellant.
Deschutes County Circuit Court
MI150079, 16CR02091;
A168336 (Control), A168337
461 P3d 1109
A. Michael Adler, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David Sherbo-Huggins, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
PER CURIAM
Remanded for entry of judgment omitting condition that
defendant not use or possess alcohol on Count 1 in Case
Number MI150079 and Count 1 in Case Number 16CR02091;
otherwise affirmed.
812 State v. Rose
PER CURIAM
In this consolidated appeal, defendant appeals from
two judgments of conviction. In Case Number MI150079,
defendant was convicted of driving under the influence of
intoxicants (DUII) (Count 1). In Case Number 16CR02091,
defendant was convicted of DUII (Count 1) and assault in
the third degree (Counts 3 and 5). Defendant pleaded guilty
to those counts. Defendant’s appeal raises various chal-
lenges to his resulting sentence, including that the 62-month
aggregate sentence of incarceration was constitutionally
disproportionate and that the trial court erred in imposing
sentencing restrictions. We reject all of defendant’s argu-
ments without further written discussion save one, that the
trial court plainly erred by imposing a mandatory sentenc-
ing condition on both DUII counts that was not permitted
by statute. We thus remand to the trial court with instruc-
tions to delete the mandatory condition on those counts that
defendant not use or possess alcohol.
Defendant contends that the trial court plainly
erred in imposing “sentencing instructions” that defendant
not use or possess alcohol because defendant received a
“straight-jail” sentence with no probation and, therefore,
could not be subjected to additional conditions. The state
concedes that the court erred because it lacked the sentenc-
ing authority to impose a mandatory incarceration restric-
tion. ORS 137.010(7) (providing that, when a court does not
suspend the imposition or execution of any sentence, the
court “shall” impose a term of imprisonment, a fine, both,
or discharge of the defendant); State v. Easton, 295 Or App
137, 138, 431 P3d 465 (2018) (remanding for modification of
incarceration conditions because the trial court exceeded its
sentencing authority). The state contends that the proper
remedy is a limited remand to strike the improperly imposed
sentencing restriction.
We accept the state’s concession, conclude that the
trial court plainly erred, and exercise our discretion to cor-
rect that error. See State v. Reed, 235 Or App 470, 475-76, 237
P3d 826 (2010) (exercising discretion to correct plainly erro-
neous mandatory condition of post-prison supervision). As a
result, we remand to the trial court to delete the improper
Cite as 303 Or App 811 (2020) 813
sentencing condition on the DUII counts that defendant not
use or possess alcohol.
Remanded for entry of judgment omitting condi-
tion that defendant not use or possess alcohol on Count 1
in Case Number MI150079 and Count 1 in Case Number
16CR02091; otherwise affirmed.