State v. Gailey ( 2022 )

285
Submitted December 22, 2021; remanded for resentencing, otherwise affirmed
January 26; petition for review dismissed June 2, 2022 (369 Or 785)
STATE OF OREGON,
Plaintiff-Respondent,
v.
MARK EDWARD GAILEY,
Defendant-Appellant.
Washington County Circuit Court
19CN05325; A173628
503 P3d 1290
Ramón A. Pagán, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mark Kimbrell, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Susan G. Howe, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
286 State v. Gailey
PER CURIAM
Defendant appeals from a judgment of contempt for
violating a restraining order. On appeal, defendant raises
four assignments of error, each challenging a different spe-
cial condition of probation. The state argues that defendant
failed to preserve his arguments for appeal but concedes
that the trial court plainly erred in imposing the special
condition of probation that requires defendant to submit
to searches without limitation. We agree with the state on
both points, accept the state’s concession, and remand for
resentencing.
At sentencing, the state requested that the court
impose the “domestic violence package” for defendant’s pro-
bation. Defendant opposed that request, emphasizing that
there was no physical or face-to-face contact in this case—
defendant had violated the restraining order by communi-
cating to the protected person through third parties—and
that the messages, while inappropriate, were directed at
seeing his son. Defendant also requested that the court con-
sider a more appropriate program, such as a high-conflict
parenting class, instead of imposing the domestic violence
package. The court imposed two years of formal probation
with the domestic violence package. In the judgment, the
trial court imposed, among others, the four probation con-
ditions that defendant challenges on appeal, which appear
in an attachment under the heading “Domestic Violence
Probation Conditions.”
On appeal, defendant argues that the trial court
exceeded its authority in imposing the four challenged con-
ditions of probation.1 Defendant argues that he preserved
the error by objecting to the domestic violence package and,
in the alternative, requests that we review his challenges
as plain error. We agree with the state that defendant did
not preserve for appeal the arguments he raises. Below,
defendant’s objection to the domestic violence package did
1
Defendant challenges the special probation conditions that require him
to attend and successfully complete a domestic violence intervention program,
that prohibit him from participating in couples’ counseling without written per-
mission of the supervising officer, that require him to “[d]isclose any potential
intimate relationships (prior to intimacy) to [his] supervising officer,” and that
require him to submit to searches of his person, residence, vehicle, and property.
Cite as 317 Or App 285 (2022) 287
not suggest that he believed that the trial court lacked
authority to impose those conditions; rather, defendant
argued that, based on his circumstances, it was not nec-
essary to impose those conditions. We decline to address
three of the challenged conditions on a plain error basis,
because the record would likely have developed differently
if defendant had preserved the arguments he now raises.
See State v. Thackaberry, 194 Or App 511, 517, 95 P3d 1142
(2004), rev den, 338 Or 17 (2005) (declining to take plain
error review for same reason).
However, the trial court plainly erred in imposing
the special condition that requires defendant to “submit to
search of person, residence, vehicle and property including
consent to search computer and telephonic devices.” The
state concedes that that condition requires defendant to sub-
mit to those searches without limitation, which is unlawful.
We agree with and accept the state’s concession. General
conditions of probation include the condition that a proba-
tioner “[c]onsent to the search of person, vehicle or prem-
ises upon the request of a representative of the supervis-
ing officer if the supervising officer has reasonable grounds
to believe that evidence of a violation will be found.” ORS
137.540(1)(i). A court cannot include a special condition of
probation that requires a probationer to submit to searches
without the “reasonable grounds” limitation that appears in
the general conditions. See, e.g., State v. Nelson, 310 Or App
219, 483 P3d 1261 (2021) (so concluding). We exercise our
discretion to correct the plain error, because the trial court
did not have a lawful basis on which to impose the condition
and it implicates defendant’s fundamental rights.
Remanded for resentencing; otherwise affirmed.