State v. Cunningham

523
Submitted August 16; in Case No. 16CR73257, remanded for resentencing,
otherwise affirmed; in Case No. 17CR04476, remanded for resentencing,
otherwise affirmed; in Case No. 16CR78536, affirmed September 25, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
JAMES HERBERT CUNNINGHAM,
Defendant-Appellant.
Clatsop County Circuit Court
16CR73257, 16CR78536, 17CR04476;
A166263 (Control), A166268, A166269, A167799
451 P3d 268
Defendant appeals three judgments of conviction, arguing that the trial
court plainly erred in imposing post-prison supervision terms that were longer
than permitted by the guidelines in two cases, and in imposing special proba-
tion conditions related to marijuana use in the third case. Held: The trial court
plainly erred in imposing post-prison supervision terms that were longer than
allowed by the sentencing guidelines. The trial court did not plainly err in impos-
ing the special conditions of probation related to marijuana use, because there
is no evidence that defendant possessed a marijuana registry identification
card.
In Case No. 16CR73257, remanded for resentencing; otherwise affirmed. In
Case No. 17CR04476, remanded for resentencing; otherwise affirmed. In Case
No. 16CR78536, affirmed.
Dawn M. McIntosh, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Rond Chananudech, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
524 State v. Cunningham
ORTEGA, P. J.
In Case No. 16CR73257, remanded for resentencing;
otherwise affirmed. In Case No. 17CR04476, remanded for
resentencing; otherwise affirmed. In Case No. 16CR78536,
affirmed.
Cite as 299 Or App 523 (2019) 525
ORTEGA, P. J.
Defendant appeals judgments of conviction for hinder-
ing prosecution (case 16CR73257), unlawful delivery of her-
oin and possession of a destructive device (case 16CR78536),
and first-degree theft (case 17CR04476). On appeal, defen-
dant argues that the trial court plainly erred in the length
of post-prison supervision imposed in 16CR73257 and
17CR04476, and in imposing the special probation conditions
related to marijuana in 16CR78536. As explained below, we
remand for resentencing in 16CR73257 and 17CR04476, and
we affirm in 16CR78536.
We first address defendant’s arguments with respect
to post-prison supervision. In 16CR73257, the trial court
categorized defendant in the 6B grid block and sentenced
him to 22 months of incarceration and 36 months of post-
prison supervision. In 17CR04476, the trial court catego-
rized defendant in the 2A grid block and sentenced him to 16
months of incarceration, to run concurrent with 16CR73257,
and 24 months of post-prison supervision. Defendant argues
that the trial court erred because in each case the trial
court imposed post-prison supervision that was 12 months
longer than the sentencing guidelines allowed for the crime
category for each of those crimes. See OAR 213-017-0006(13)
(hindering prosecution is a category “6” crime); OAR 213-
017-0010(4) (first-degree theft is a category “2” crime); OAR
213-005-0002(2)(a) (post-prison supervision term for a cat-
egory “6” crime is two years and for a category “2” crime
is one year); see also OAR 213-005-0002(1) (“Departures
on the duration of post-prison supervision shall not be
allowed.”). Defendant acknowledges that he failed to pre-
serve the claimed error, but requests that we correct the
error as plain error under ORAP 5.45(1). The state concedes
that the trial court plainly erred and that we should correct
that error. We agree and accept the state’s concession. See
State v. Glazier, 266 Or App 824, 825, 340 P3d 90 (2014)
(correcting as plain error a 36-month term of post-prison
supervision imposed for a category “6” crime). Additionally,
we conclude that we should exercise our discretion to correct
the error because the state has no interest in the imposition
of an unlawful sentence, we perceive no tactical reason that
526 State v. Cunningham
defendant failed to raise an objection below, and the error is
grave. Accordingly, we remand for resentencing in those two
cases.
We next address defendant’s arguments with respect
to the special conditions of probation in 16CR78536. In that
case, defendant was sentenced to supervised probation of
60 months, subject to special conditions of probation that,
among other things, prohibit defendant from possessing
“marijuana paraphernalia,” possessing or using marijuana,
“even if prescribed,” and from applying for or possessing a
medical marijuana card or acting as “a caregiver for any
person who possesses a medical marijuana card.” Defendant
argues that those conditions are unlawful because, under
ORS 137.542(2), medical marijuana is required to be treated
the same as any other prescription medication.1 Because ORS
137.540(1)(b) provides an exception for the general condition
of probation prohibiting the use of controlled substances for
use “pursuant to a medical prescription,” defendant rea-
sons that the exception for medical marijuana use must be
treated the same. That means, according to defendant, that
the court’s special probation conditions in his case prohibit-
ing use or possession of marijuana, “even if prescribed,” and
prohibiting applying for or possessing a registry card, are
plainly in direct conflict with ORS 137.542(2). Defendant
acknowledges that he had an opportunity to object to the
imposition of the special conditions of probation at his sen-
tencing, but he failed to do that. Thus, defendant requests
that we correct the error as plain error under ORAP 5.45(1).
The state responds that ORS 137.542(2) applies only
to “the conditions of supervision of a person who holds a reg-
istry identification card” and, because there is no evidence
in the record here that defendant holds such a card, any
error committed by the trial court was not plain error. See
State v. Kilgore, 295 Or App 602, 604-05, 435 P3d 817 (2019)
1
ORS 137.542(2) provides:
“Notwithstanding ORS 137.540, the conditions of supervision of a person
who holds a registry identification card and is sentenced to probation related
to the use of usable marijuana, medical cannabinoid products, cannabinoid
concentrates or cannabinoid extracts must be imposed in the same manner
as the conditions of supervision of a person sentenced to probation related to
prescription drugs.”
Cite as 299 Or App 523 (2019) 527
(“[T]he effect of ORS 137.542(2) is that a special probation
condition regarding marijuana use must contain an excep-
tion for marijuana use that complies with Oregon’s medical
marijuana laws, if the probationer holds a medical mari-
juana registry identification card.”).
We agree with the state that the error raised by
defendant does not qualify as plain error. See State v. Jury,
185 Or App 132, 135, 57 P3d 970 (2002), rev den, 335 Or 504(2003) (“For error to be considered apparent on the face of the
record for purposes of ORAP 5.45, it must satisfy three cri-
teria: (1) it must be legal error; (2) it must be apparent, such
that the legal point is obvious, not reasonably in dispute;
and (3) it must appear on the face of the record, such that we
need not go outside the record or choose between competing
inferences to find it, and the facts that comprise the error
are irrefutable.” (Internal quotation marks omitted.)).
We have held that, “if the other requirements of
ORS 137.542(2) are satisfied—that is, if a person holds a
registry identification card and is sentenced to probation—
the probation conditions related to the use of usable mari-
juana and specified cannabinoid products must comply with
the statute.” State v. Jerscheid, 294 Or App 564, 566, 432
P3d 380 (2018) (emphasis omitted). We have not previously
addressed the precise issue raised by defendant here that,
in the absence of evidence that the person holds a registry
identification card, the probation conditions must nonethe-
less treat medically-prescribed marijuana the same as other
prescription medications. And, the text of the statute does
not obviously require the reading advocated by defendant.
Because there is no evidence that defendant possessed a
registry identification card, any error by the trial court in
imposing those conditions does not qualify as plain error.
In Case No. 16CR73257, remanded for resentencing;
otherwise affirmed. In Case No. 17CR04476, remanded for
resentencing; otherwise affirmed. In Case No. 16CR78536,
affirmed.