State v. Cowart , 323 Or. App. 281 ( 2022 )

281
This is a nonprecedential memorandum opinion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 November 3; in Case Nos. 19CR82305 and 20CR08127, remanded for
resentencing, otherwise affirmed December 14, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOAQUIN AMADEUS COWART,
aka Joaquin Cowart,
aka Joaquin A. Cowart,
aka Joaquin Amadues Cowart,
Defendant-Appellant.
Jackson County Circuit Court
19CR82305, 20CR08127;
A176388 (Control), A176389
Timothy Barnack, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erik Blumenthal, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
ORTEGA, P. J.
In Case Nos. 19CR82305 and 20CR08127, remanded for
resentencing; otherwise affirmed.
282 State v. Cowart
ORTEGA, P. J.
In these consolidated cases, defendant argues that
the trial court erred in several respects in imposing his sen-
tence. The state concedes the errors. As explained below, we
accept the concession and therefore remand for resentenc-
ing. In the first of these cases, Case No. 19CR82305, defen-
dant pleaded no contest to Count 1, and the court dismissed
Counts 2 to 6, all of which constituted second-degree encour-
aging child sexual abuse; the court then sentenced him to
45 months’ incarceration. In the other, Case No. 20CR08127,
defendant pleaded guilty to four counts of second-degree sex-
ual abuse and received consecutive sentences of 36 months’
incarceration on each count. At sentencing, the prosecutor
explained that defendant would be eligible for earned time
on the sentences; the court did not indicate otherwise in pro-
nouncing judgment. However, in both written judgments,
the court included provisions that defendant “not be consid-
ered by the executing or releasing authority for any form of
Reduction in Sentence, Conditional or Supervised Release
Program, Temporary Leave From Custody, Work Release.
The Defendant may not be considered for release on post-
prison supervision under ORS 421.508(4) upon successful
completion of an alternative incarceration program.” And,
in the written judgment in Case No. 20CR08127, the court
also included a “sentence instruction” that defendant have
“[n]o contact with minors.”
Under ORS 137.750(1), a court may deny a defendant
“temporary leave from custody, reduction in sentence, work
release or program of conditional or supervised release” only
if it “finds on the record in open court substantial and com-
pelling reasons to order that the defendant not be consid-
ered for such leave, release or program.” That did not occur
here. Because the errors with respect to the court’s failure
to comply with ORS 137.750(1) appeared in the first instance
in the judgment, preservation of error is not required. See
State v. Montes, 317 Or App 658, 504 P3d 1269 (2022) (same).
These errors require resentencing in both cases.
Defendant also argues that the trial court plainly
erred in imposing the no-contact provision in Case No.
20CR08127, that this constitutes plain error, and asks that
Nonprecedential Memo Op: 323 Or App 281 (2022) 283
this court exercise discretion to correct the error. The state
agrees that the trial court lacked authority to impose such
a provision, and that doing so was plainly erroneous. We
also agree. See State v. Hall, 282 Or App 9, 11, 385 P3d 1225
(2016), rev den, 360 Or 752 (2017) (correcting similar error
as plain error). Accordingly, we exercise discretion to correct
the error for the reasons set forth in Hall.
In Case Nos. 19CR82305 and 20CR08127, remanded
for resentencing; otherwise affirmed.