State v. Thorn ( 2024 )

No. 736 October 16, 2024 519
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JORDAN TIMOTHY THORN,
Defendant-Appellant.
Deschutes County Circuit Court
21CR10786; A180958
Wells B. Ashby, Judge.
Submitted September 5, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Brett J. Allin, Deputy Public Defender, Oregon
Public Defense Commission, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
AOYAGI, P. J.
Remanded for entry of a judgment omitting the sentence
instruction on Count 2; otherwise affirmed.
520 State v. Thorn
AOYAGI, P. J.
Defendant appeals the amended judgment entered
after he pleaded guilty to criminal conspiracy, ORS 161.450
(Count 1); attempted first-degree burglary, ORS 161.405
and ORS 164.225 (Count 2); and attempted first-degree rob-
bery, ORS 161.405 and ORS 164.415 (Count 3). In his sole
assignment of error, defendant argues that the trial court
erred by including in the judgment a “sentence instruction”
requiring the forfeiture of seized property. The state con-
cedes the error, but the parties disagree as to the appro-
priate remedy. As explained below, we agree that the court
erred, and we remand for entry of a judgment that omits the
sentence instruction.
After a settlement conference in which the vic-
tim participated, the state agreed to “take this case out of
Measure 11” so that defendant would have “the opportu-
nity to earn good time and to participate in programs,” and
defendant agreed to plead guilty, serve a 90-month prison
term, and pay a $5,000 compensatory fine to the victim.
Defense counsel observed that it was “a very unique settle-
ment conference that had incredible results.” The trial court
indicated at sentencing that it intended to follow the parties’
sentencing recommendations, and the court and the parties
were generally scrupulous about making a record of the par-
ties’ agreement and the sentencing terms.
However, in the actual judgment entered by the
court (which was drafted by the state at the court’s request),
as well as in a subsequent amended judgment entered by
the court, there appears under Count 2 a heading called
“Sentence Instructions,” under which it provides that “[a]
ll property seized is forfeited.” That sentencing instruc-
tion was not mentioned in open court. Moreover, nothing in
the record suggests that it was part of the plea deal; to the
contrary, the record essentially forecloses that possibility.
Because it appeared for the first time in the judgment, there
is no preservation requirement. State v. Lewis, 236 Or App
49, 52, 234 P3d 152, rev den, 349 Or 172 (2010).
“We review sentencing decisions for legal error.”
State v. Tison, 292 Or App 369, 372, 424 P3d 823, rev den,
Nonprecedential Memo Op: 335 Or App 519 (2024) 521
363 Or 744 (2018). “A criminal defendant has the right
to have their sentence announced in open court.” State v.
Priester, 325 Or App 574, 581, 530 P3d 118, rev den, 371 Or
332 (2023). A trial court commits reversible error if it does
not do so. State v. Bates, 315 Or App 402, 404, 500 P3d 746
(2021). We therefore accept the state’s concession of error as
well taken.
As for the appropriate remedy, defendant argues
that the trial court lacked authority to impose the forfei-
ture instruction and that we should therefore remand with
instructions to enter an amended judgment that omits that
instruction. The state argues that we should instead remand
for resentencing—as is typical, Bates, 315 Or App at 404—
because there is statutory authority for criminal forfeiture
of some kinds of seized property and the record is silent as to
the nature of any seized property in this case. We conclude
that defendant has the better argument in this instance.
ORS 138.257(4)(a)(B) requires us to remand a case
to the trial court if we determine that the court committed
a sentencing error “that requires resentencing.” Generally
speaking, a sentencing error requires resentencing if “there
remain options that the trial court permissibly could adopt
on resentencing.” State v. Edson, 329 Or 127, 139, 985 P2d
1253 (1999) (construing former ORS 138.222(5) (1997),
repealed by Or Laws 2017, ch 529, § 26, which contained
almost identical language to current ORS 138.257); see also
Haynes v. Adair Homes, Inc., 231 Or App 144, 153, 217 P3d
1113 (2009), rev den, 348 Or 414 (2010) (“[W]e ordinarily
assume that, when the legislature adopts wording from ear-
lier versions of statutes, it intends to adopt any judicial con-
struction that has been given that wording at the time of
enactment.”).
Here, we agree with defendant that there are no
such options, because the trial court lacked authority to
impose a sentence instruction with a prison sentence.
“When a trial court imposes a sentence of incarcera-
tion, it lacks authority to impose additional conditions in the
form of ‘sentence instructions,’ as the trial court did here.”
State v. Brunson, 303 Or App 668, 669, 465 P3d 305, rev den,
522 State v. Thorn
366 Or 826 (2020) (holding that the court lacked authority
to impose both a sentence of incarceration and a sentence
instruction that the defendant not enter property on which
he had trespassed); see also State v. Rose, 303 Or App 811,
812, 461 P3d 1109 (2020) (holding that the court lacked
authority to impose a mandatory incarceration restriction);
State v. McClure, 302 Or App 643, 644, 458 P3d 733 (2020)
(“[W]hen imposing a sentence of incarceration, trial courts
lack authority to impose either conditions of incarceration
or conditions of post-prison supervision.”). The state cites
potential authority to order the forfeiture of seized property
in the abstract, but it fails to address the lack of authority
to impose sentence instructions at all in conjunction with
imposing a prison term.
Moreover, to the extent the state means to suggest
that the court could potentially require criminal forfeiture
as part of the sentence by means other than a sentence
instruction, the state has not explained how that would be
possible in this case, particularly when the statutes per-
taining to criminal forfeiture of property, ORS 131.550 to
131.600, contain detailed procedural requirements that were
not followed here and could not be followed at this point.
Under the circumstances, we agree with defendant
that it is appropriate to remand with instructions to enter
an amended judgment omitting the sentence instruction on
Count 2 regarding the forfeiture of seized property.
Remanded for entry of a judgment omitting the sen-
tence instruction on Count 2; otherwise affirmed.