State v. White , 336 Or. App. 218 ( 2024 )

218 November 14, 2024 No. 819
This is a nonprecedential memorandum opinion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.
NIGEL RIVER WHITE,
Defendant-Appellant.
Coos County Circuit Court
22CR32359; A180743
Martin E. Stone, Judge.
Submitted September 25, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Joel Duran, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Julia Glick, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, Powers, Judge, and
Pagán, Judge.
SHORR, P. J.
Remanded for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 336 Or App 218 (2024) 219
SHORR, P. J.
Defendant appeals from a judgment of conviction
for aggravated harassment (ORS 166.070) and disorderly
conduct in the second degree (ORS 166.025). Defendant
raises four assignments of error, which all challenge some
aspect of defendant’s sentencing. As to the first two assign-
ments of error, the state concedes that the trial court erred
when it imposed per diem fees in the written judgment when
those fees were not pronounced in open court at defendant’s
sentencing hearing. We agree and accept that concession.
Because this case is going back for resentencing based on
the conceded errors, we do not reach defendant’s third and
fourth assignments of error that contend that the trial court
plainly erred in requiring defendant to submit to a poly-
graph examination as a special condition of probation. We
therefore remand for resentencing.
In his first two assignments of error, defendant con-
tends that the trial court erred in adding per diem fees to
the judgment for each conviction when those fees were not
previously announced in open court at sentencing. As noted,
the state concedes error and we accept that concession. A
court may not impose fees or fines in a written judgment
when it did not pronounce them in open court at sentenc-
ing. State v. Dennis, 303 Or App 595, 596-97, 464 P3d 518
(2020). Per diem fees are monetary obligations that a defen-
dant pays to the county for the daily cost of housing them in
jail. See State v. Schay-Vivero, 333 Or App 168, 169, 552 P3d
150 (2024) (describing same); ORS 169.151(1)(a) (providing
that a county may impose costs of incarceration of up to $60
a day). A defendant may argue that the defendant does not
have the ability to pay the fees and the court shall account
for a defendant’s ability to pay such fees before imposing
them. ORS 169.151(3), (5). Because defendant did not have
the opportunity to contend that he was unable to pay such
fees, we cannot say that any error was harmless.
In his third and fourth assignments of error, defen-
dant contends that the trial court plainly erred in impos-
ing a polygraph-examination requirement as a special con-
dition of probation. Because defendant will be resentenced
anyway, he can raise that issue on remand and we do not
220 State v. White
need to resolve it here. See Dennis, 303 Or App at 598 (not
addressing certain additional challenged fees when the case
was remanded for resentencing on other grounds); ORS
138.257(4)(b) (stating that a trial court on remand “may
impose a new sentence for any conviction”).
Remanded for resentencing; otherwise affirmed.