State v. Barkley , 324 Or. App. 339 ( 2023 )

339
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted January 24; remanded for resentencing, otherwise affirmed
February 23; petition for review denied May 18, 2023 (371 Or 106)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JEREMIAH JAMES BARKLEY,
Defendant-Appellant.
Marion County Circuit Court
19CR18896; A175995
J. Channing Bennett, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David O. Ferry, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Hellman, Judge.
AOYAGI, P. J.
Remanded for resentencing; otherwise affirmed.
340 State v. Barkley
AOYAGI, P. J.
Defendant was convicted of first-degree sexual abuse,
ORS 163.427 (Count 1); third-degree sodomy, ORS 163.385
(Count 2); and six counts of second-degree sexual abuse,
ORS 163.425 (Counts 4 to 9). Those convictions are based on
defendant’s sexual abuse of a teenaged boy who belonged to
the same church as defendant and who was a member of the
Boy Scout troop for which defendant was the Scoutmaster.
On appeal, defendant raises two assignments of error. First,
he argues that the trial court erred in entering a judgment
that provides for consecutive sentencing on Count 9, which
is contrary to the sentence announced in defendant’s pres-
ence. Second, he argues that the trial court erred by order-
ing defendant’s wife to testify after she invoked the Fifth
Amendment. We conclude that the trial court erred in the
first regard, but not the second.
Sentencing. At sentencing, the trial court announced
each of the sentences for defendant’s eight convictions and
how they would run, including that defendant’s 36-month
sentence on Count 9 would run concurrently with his other
sentences. As announced, defendant’s sentences totaled 263
months of prison time. At the time, the court stated that it
had decided not to impose the 299 months requested by the
state, but instead intended to impose 285 months, and it
does not appear to have realized that the sentences imposed
totaled less than it intended. The court subsequently entered
a judgment consistent with its oral pronouncement of sen-
tence. A week later, however, it entered an amended judg-
ment, changing the sentence on Count 9 from concurrent
to consecutive, resulting in a total of 299 months of prison
time.
Defendant contends that the court erred by modi-
fying his sentence outside his presence.1 The state concedes
the error, and we agree. “A defendant’s right to be present
when sentenced on a felony is both statutorily and constitu-
tionally grounded.” State v. DeCamp, 158 Or App 238, 242,
1
Because the modification appeared for the first time in the amended judg-
ment, defendant had no opportunity to object to it at sentencing, excusing him
from the requirements of preservation of error. State v. Lewis, 236 Or App 49, 52,
234 P3d 152, rev den, 349 Or 172 (2010).
Nonprecedential Memo Op: 324 Or App 339 (2023) 341
973 P2d 922 (1999) (holding that it was error to make a sub-
stantive modification to the defendant’s sentence outside his
presence); see also State v. Blake, 7 Or App 307, 311, 490 P2d
1026 (1971) (“A modification of the judgment providing that
the sentences would be served consecutively, rather than
concurrently, would be a substantive change in the sen-
tence. Such a change must be accomplished in defendant’s
presence or it may be invalidated.”). The trial court erred in
acting as it did and, accordingly, we remand for resentenc-
ing, as both parties request.
Wife’s testimony. Defendant’s wife was called as a
witness at defendant’s trial. Over a year earlier, she had
pleaded guilty to three counts of second-degree sex abuse
of the same victim, based on her having sex with the boy
when he was 17 years old. At defendant’s trial, the court
interrupted defendant’s wife’s testimony to ask her attor-
ney whether he wanted to speak to his client, advised her
of her Fifth Amendment right to remain silent, and warned
her that if her testimony at defendant’s trial was inconsis-
tent with testimony that she gave under oath in her own
case, that could constitute the crime of false swearing.
Defendant’s wife subsequently stated that she was “going
to go ahead and under advice of counsel, plead the Fifth.”
Proceedings halted, and, the next morning, the court and
the parties met in chambers for an hour. When they went
back on the record, the court noted that defendant’s wife
had pleaded to her charges without testifying under oath
in her case, such that the “false swearing” issue that the
court had raised the day before was not actually an issue,
so there was “not a Fifth Amendment issue.” The court con-
cluded by stating, “Thus I will compel you to testify.” The
court then asked defendant if he wanted to put his position
on the record, at which point defendant argued the marital
communication privilege, and the trial court rejected that
argument.
The state argues that defendant’s claim of error on
appeal is unpreserved, because defendant never objected to
his wife’s testimony on Fifth Amendment grounds, assert-
ing only the marital communication privilege. The state fur-
ther argues that defendant has not requested plain-error
review and that, in any event, it was not plain error to order
342 State v. Barkley
defendant’s wife to proceed with testifying, because Fifth
Amendment rights are personal to the witness and cannot
be invoked by someone else.2 See State v. Johnson, 243 Or
532, 537-38, 413 P2d 383 (1966) (“The refusal of a witness
to answer questions on the basis of his constitutional right
against self-incrimination is the personal privilege of the
witness, a matter over which the defendant has no control.”);
State v. Denniston, 8 Or App 64, 71, 491 P2d 1189 (1971)
(“[T]he privilege against self-incrimination is personal to the
witness and any error concerning that privilege may only be
raised by him.”). We agree with the state on all three points
and, accordingly, reject defendant’s second assignment of
error.
Remanded for resentencing; otherwise affirmed.
2
“Generally, an issue not preserved in the trial court will not be considered
on appeal.” State v. Wyatt, 331 Or 335, 341, 15 P3d 22 (2000). However, we have
discretion to correct a “plain” error. ORAP 5.45(1); State v. Vanornum, 354 Or
614, 629, 317 P3d 889 (2013) (stating requirements for “plain” error).