State v. McLaughlin ( 2020 )

368
Submitted September 4; in Case Nos. 17CR69533 and 18CR55214, reversed
and remanded for resentencing, otherwise affirmed; in Case Nos. 060102,
16CR38161, 18CR05064, 18CR59678, and 18CR28778, affirmed
October 21, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
NOELLE KATHARINE McLAUGHLIN,
aka Noelle Katharine Nicholas,
aka Noelle Kat Nicholas-McLaughlin,
aka Noelle Katherine Nicholson Mclaughlin,
Defendant-Appellant.
Lincoln County Circuit Court
060102, 16CR38161, 17CR69533,
18CR05064, 18CR28778, 18CR55214, 18CR59678;
A170473 (Control), A170474, A170475,
A170476, A170477, A170478, A170479
476 P3d 987
Thomas O. Branford, 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 Jonathan N. Schildt, Assistant
Attorney General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
In Case Nos. 17CR69533 and 18CR55214, reversed and
remanded for resentencing; otherwise affirmed. In Case
Nos. 060102, 16CR38161, 18CR05064, 18CR59678, and
18CR28778, affirmed.
Cite as 307 Or App 368 (2020) 369
PER CURIAM
Defendant appeals judgments in these seven con-
solidated cases, six of which involve probation revocations.
On appeal, she raises assignments of error pertaining
only to two of the probation revocation cases. In Case No.
17CR69533, in which defendant had been convicted of iden-
tity theft, the trial court revoked probation, imposed a pro-
bation fee, and sentenced defendant to 180 days of incar-
ceration, followed by 12 months of post-prison supervision.
Similarly, in Case No. 18CR55214, involving possession of
heroin and first-degree theft, the court revoked probation,
imposed a probation fee, and sentenced defendant to 180
days of incarceration, followed by 12 months of post-prison
supervision. Although the court announced the probation
fees in open court, it failed to announce the sentences of
incarceration and post-prison supervision in these two
cases. The court also did not address eligibility for program-
ming with respect to those two cases, although the judg-
ments in both cases indicate that defendant is not eligible
for programming or reductions in sentence “for substantial
and compelling reasons set forth on the record.” Those terms
appeared in the judgment in the first instance.
On appeal, defendant argues that the trial court
erred in failing to announce in open court the sentences it
was imposing in these two cases, and in failing to address
defendant’s eligibility for sentence modification programs
under ORS 137.750. It is undisputed that a court errs in
imposing sentence outside the presence of the defendant.
See, e.g., State v. Zamno, 299 Or App 270, 271, 450 P3d 57
(2019) (citing cases). Defendant asserts that preservation of
her arguments is not required because the errors appeared
in the first instance in the judgment. See State v. Rhamy,
294 Or App 784, 785, 431 P3d 103 (2018) (preservation not
required when error appears for the first time in the judg-
ment). The state concedes the errors and agrees that pres-
ervation is not required in this circumstance. We agree and
accept the concession.
In Case Nos. 17CR69533 and 18CR55214, reversed
and remanded for resentencing; otherwise affirmed. In
Case Nos. 060102, 16CR38161, 18CR05064, 18CR59678, and
18CR28778, affirmed.