140
Submitted December 20, 2019; remanded for resentencing, otherwise affirmed
February 5, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
ERIC HUNTER WORTHEY,
Defendant-Appellant.
Lincoln County Circuit Court
18CR43093; A168791
460 P3d 545
Defendant appeals from a judgment of conviction for fleeing or attempting
to elude a police officer and recklessly endangering another person. Defendant
assigns error to the trial court’s imposition of three special conditions of probation, prohibiting defendant from (1) using or possessing alcohol, (2) entering
establishments serving alcohol, and (3) using or possessing marijuana or cannabis products. Defendant did not object to those conditions during sentencing
and now asks for plain error review, arguing that they do not relate to the crimes
underlying his conviction or his particular needs. Held: The Court of Appeals
declined to exercise discretion to review the first two conditions as plain error.
The third condition, prohibiting the use or possession of marijuana, appeared
for the first time in the written judgment. Therefore, defendant was excused
from having to object to it. Because the record does not support a conclusion
that restricting defendant’s use of marijuana reasonably relates to the crime of
conviction, the needs of defendant, or the protection of the public, the trial court
erred when it imposed that special condition of probation.
Remanded for resentencing; otherwise affirmed.
Sheryl Bachart, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Brett J. Allin, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Lauren P. Robertson, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
SHORR, J.
Remanded for resentencing; otherwise affirmed.
Cite as 302 Or App 140 (2020) 141
SHORR, J.
Defendant appeals from a judgment of conviction for
fleeing or attempting to elude a police officer, ORS 811.540
(1)(b)(A), and recklessly endangering another person, ORS
163.195, which was entered after defendant pleaded guilty
to those crimes. Defendant challenges the trial court’s imposition of three special conditions of probation prohibiting
defendant from (1) using or possessing alcoholic beverages,
(2) entering establishments serving alcohol (except as a
result of employment or consuming a meal), and (3) using
or possessing marijuana or cannabis products. Regarding
the first two conditions, defendant did not object in the trial
court to the imposition of those conditions and asks us to
exercise our discretion to review the court’s decision as plain
error. As to the third condition, the court did not announce
that condition in court during sentencing, but nevertheless
imposed the condition in the judgment. Defendant asks us
to review that decision for legal error. As we discuss below,
we do not exercise our discretion to review the first two
conditions as plain error. We agree, however, that the trial
court erred in imposing the third condition, and, as a result,
we remand for resentencing.
Defendant’s first two assignments of error relate to
the imposition of special conditions of probation that restrict
defendant’s use or possession of alcohol and his entry into
establishments that serve alcohol. Defendant contends that
the trial court plainly erred in imposing those conditions
because they do not relate to the crimes underlying his
conviction or his particular issues and needs. Defendant
observes that his conviction did not involve the use of alcohol or, as we discuss later, marijuana, and there is no record
that he had issues relating to those substances in the past.
The state counters that the court either did not err, plainly
or otherwise, or that we should not exercise our discretion
to review any claimed plain error. We review the court’s
imposition of probation conditions for errors of law. State v.
Borders, 293 Or App 791, 793,
429 P3d 1067 (2018).
ORS 137.540(2) provides the trial court with discretion to “impose any special conditions of probation that are
reasonably related to the crime of conviction or the needs
142 State v. Worthey
of the probationer for the protection of the public or reformation of the probationer, or both.” We have construed that
statute “to require that special conditions of probation be
(1) reasonably related to the crime of conviction or the needs
of the defendant, and (2) imposed for the protection of the
public or reformation of the offender or both.” Borders, 293
Or App at 794 (emphasis in original).
In imposing the special conditions of probation, the
trial court explained:
“The reason—I know this isn’t alcohol and drug-related,
but what is very clear is you do suffer from a mental illness,
and right now I believe to be untreated, and adding alcohol
and drugs[1] to that is just … exacerbating your mental
illness, and that’s the reason for that condition.
“…
“You’re not to use or possess any alcohol. You’re not to
enter into any bar, tavern or liquor store unless it’s for the
purposes of employment or consuming a meal. And again,
the same nexus is that, again, it’s very obvious that you’re
suffering from a mental illness that is now untreated, and
the use and possession of … alcohol is just going to further impair your judgment and exacerbate your mental
illness.”
As noted, defendant did not object to the imposition of these
conditions at this or any other point during sentencing.
Defendant did not contend, as he does now before us, that
the alcohol-related restrictions are not reasonably related to
defendant’s needs and the protection of the public or defendant’s reformation.
We recognize that we have exercised our discretion
to correct plainly erroneously imposed conditions of probation. See State v. Hullinger, 301 Or App 746, 747,
456 P3d 383
(2020) (exercising discretion to correct plainly erroneous
alcohol-related conditions of probation). However, we decline
to exercise our discretion in this instance because, among
other reasons, the record may have developed differently
1
There is no dispute that the references to drugs at this point in the transcript referred to illegal drugs, which the trial court also restricted defendant
from using or possessing as a condition of probation. That reference is not to
marijuana, which was not discussed during sentencing.
Cite as 302 Or App 140 (2020) 143
had defendant raised an objection in the trial court, and
that court may have addressed defendant’s objections to
avoid any claimed error. See Ailes v. Portland Meadows, Inc.,
312 Or 376, 382 n 6,
823 P2d 956 (1991) (discussing factors
for exercising plain error review).
The trial court was concerned about the effect that
alcohol would have on what the court understood to be defendant’s mental illness. There is some minimal factual record
that was presented at sentencing regarding defendant’s
mental illness, but it is not well developed. During sentencing, defendant’s counsel noted that defendant had been
depressed at the time of his conduct that led to the arrest
and had made some seemingly bizarre statements regarding the police officers’ conduct on the night of his arrest.
Defendant referred to mental health treatment that he had
received at some point in the past. Defendant also stipulated
to mental health treatment as a condition of probation.
We do not reach the question whether that record
alone would support a conclusion that the alcohol-related
prohibitions were reasonably related to defendant’s needs
and the protection of the public or reformation of the
offender. Had defendant objected, the state perhaps could
have developed a more complete record regarding the relationship between restricting defendant’s alcohol use to
address defendant’s mental health needs and the protection
of the public or the reformation of defendant. The trial court
also may have addressed any claimed error presented to it.
Therefore, we decline to exercise our discretion to review
defendant’s plain error argument on the merits.
As to the third assignment of error, defendant did
not have any opportunity to object to the trial court’s imposition of the special condition that prohibited defendant’s use
or possession of marijuana or cannabis products. As noted,
that condition appeared for the first time in the judgment.
Thus, defendant was excused from having to object to it.
State v. Lewis, 236 Or App 49, 52,
234 P3d 152, rev den,
349
Or 172 (2010). We conclude that it was error for the court to
impose that condition. There is no record in the trial court
to support a conclusion that the restriction on defendant’s
use of marijuana or cannabis products reasonably relates
144 State v. Worthey
to defendant’s mental health condition or is imposed for the
protection of the public or reformation of defendant. The
issue of marijuana never arose prior to the court’s judgment.
As noted above, defendant acknowledged that he had been
depressed at the time of the arrest and that he had sought
and would seek mental health treatment, but there is nothing in the record that supports any connection between
marijuana use and a past incident of feeling depressed or
defendant’s past or future participation in mental health
treatment. Accordingly, the trial court erred when it imposed
the special condition of probation restricting defendant’s use
of marijuana or cannabis products because that restriction
was not “(1) reasonably related to the crime of conviction
or the needs of the defendant, and (2) imposed for the protection of the public or reformation of the offender or both.”
Borders,
293 Or App at 794 (emphasis in original).
Remanded for resentencing; otherwise affirmed.
