State v. Miller

                                    515

     Submitted July 12; remanded for resentencing, otherwise affirmed
 September 18, 2019; petition for review denied January 16, 2020 (

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                   PAULA MARIE MILLER,
                     Defendant-Appellant.
                Clackamas County Circuit Court
                     CR1502018; A166454
                                

  Thomas J. Rastetter, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mark Kimbrell, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the briefs for respondent.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Landau, Senior Judge.
  PER CURIAM
  Remanded for resentencing; otherwise affirmed.
516                                                         State v. Miller

           PER CURIAM
         Following a jury trial, defendant was convicted of
unlawful delivery of methamphetamine, ORS 475.890.1 Defendant challenges probation conditions that appeared for the
first time in the judgment, including conditions prohibiting
her from: (1) applying for or using a medical marijuana registry card and consuming medicinal or recreational marijuana; (2) using or possessing controlled substances; (3) frequenting places where narcotics are used, sold, or kept; and
(4) possessing any narcotics paraphernalia and associating
with any person known to use, sell, or possess illegal drugs
or narcotics.2 Defendant argues that those conditions are
invalid because any special condition imposed relating to
medical marijuana must be imposed in the same manner
as probation conditions relating to prescription medication.
ORS 137.540(1)(b); ORS 137.542(2). Defendant also argues
that the rules of preservation do not apply.
          The state concedes that the condition prohibiting
defendant’s participation in the medical marijuana program is invalid under ORS 137.542(2). The state further
concedes that the other conditions are invalid if defendant
holds a medical marijuana card and that preservation is not
required. We agree with the state that, if defendant holds a
medical marijuana registry card, the conditions are invalid
and that preservation is not required because the conditions
appeared for the first time in the judgment. State v. Rhamy,

, 

 (2018) (concluding that the
trial court erred in imposing a probation condition prohibiting the defendant from applying for or using a registry identification card pursuant to the Oregon Medical Marijuana
Act (OMMA) in violation of ORS 137.542(2) and that preservation principles did not apply when the condition appeared
for first time in judgments); State v. Bowden, 

      The jury found defendant guilty of possession of methamphetamine and
unlawful delivery of methamphetamine, but the trial court merged the guilty
verdict on possession of methamphetamine into the guilty verdict on unlawful
delivery of methamphetamine.
    2
      In supplemental briefing, defendant raised an additional assignment of
error arguing that the trial court plainly erred in instructing the jury that it
could return nonunanimous verdicts. We reject that assignment of error on the
merits.
Cite as 

 (2019)                                              517

815, 818-19, 

 (2018) (concluding that a “sentencing court does not have the discretion to impose a probation
condition that runs counter to ORS 137.540(1)(b) and ORS
137.542”); see also State v. Kilgore, 

,

 (2019).3
         We turn to the appropriate disposition. Defendant
asks that we reverse the challenged probation conditions.
The state responds that, other than the condition prohibiting defendant’s participation in the medical marijuana program, because the remaining conditions are invalid only if
defendant is a holder of an OMMA card, we should remand
for resentencing for the trial court to determine defendant’s
OMMA status and resentence in conformance with ORS
137.542. We agree with the state. Kilgore, 

.
           Remanded for resentencing; otherwise affirmed.




    3
      We express no opinion on the state’s concession that, regardless of defendant’s OMMA status, the condition prohibiting defendant’s participation in the
medical marijuana program is invalid under ORS 137.542(2) because the issue
can be addressed in the first instance on remand.