State v. Anotta

                                  176

Submitted December 20, 2019; remanded for resentencing, otherwise affirmed
      February 5; petition for review denied June 4, 2020 (

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                  JEDIDIH ALAKA ANOTTA,
                      Defendant-Appellant.
                  Clatsop County Circuit Court
                      17CR44131; A168048
                               

  Cindee S. Matyas, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
  PER CURIAM
  Remanded for resentencing; otherwise affirmed.
Cite as 

 (2020)                                              177

           PER CURIAM
         Defendant appeals from a judgment of conviction
for driving under the influence of intoxicants and reckless
driving. On appeal, in four assignments of error, defendant
challenges special conditions of probation imposed in the
judgment, which we discuss below. We reject defendant’s
first assignment of error without discussion.
        Defendant challenges the following special probation conditions, which require that defendant:
       “Not knowingly associate with any person known to
    use, sell or possess illegal drugs or with any other individual the Court or probation officer designates, and not visit
    or remain at places where illegal drugs are used, kept or
    sold.
        “… [D]efendant is further prohibited from presenting any prescription to be filled without first advising the
    probation officer of the name of the doctor issuing the prescription, where defendant intends to have the prescription
    filled, and what the drug is (except in the case of medical
    emergency, wherein defendant shall advise the probation
    officer as soon as possible). …
        “…
        “Submit to breath, blood, saliva or urine testing at the
    direction of probation officer, court monitor, Court, evaluator, or treatment provider, and pays [sic] all costs.”
        Defendant argues that the trial court erred in imposing those special conditions, because it did not announce
them in open court at sentencing.1
         The state concedes that, with the exception of the
condition that requires defendant to submit to and pay for
testing, the trial court erred in imposing those terms without announcing them in open court. We agree with and
accept the state’s concession with respect to those probation
conditions.

    1
      Defendant also argues that the trial court erred because the special conditions are not both reasonably related to the crime and imposed for the protection
of the public or reformation of the offender. State v. Borders, 

, 

 (2018). Based on our disposition on other grounds, we do not
address that argument.
178                                           State v. Anotta

         For the probation condition that requires defendant
to submit to and pay for testing, the state argues that any
error of the trial court in imposing that condition as a special condition is harmless, because the trial court imposed
the exact same condition as a general condition of probation
that defendant does not challenge on appeal. We agree with
the state and reject defendant’s challenge to that special
condition of probation.
          What remains is our disposition. Defendant argues
that we should not remand for resentencing and should
instead direct the court to enter a corrected judgment that
omits the unlawful probation conditions. In similar cases,
we have concluded that a remand for resentencing is appropriate. See, e.g., State v. Pickerel, 

, 

 (2019) (remanding for resentencing when probation
violation fee was not announced in open court); State v.
Bowden, 

, 

 (2018) (remanding for resentencing when invalid special probation conditions were imposed). See also ORS 138.257(4)(a)(B) (“The
appellate court shall remand the case to the trial court …
[i]f the appellate court determines that the trial court, in
imposing or failing to impose a sentence in the case, committed an error that requires resentencing.”). We conclude
that it is also appropriate to remand in this case.
        Remanded for resentencing; otherwise affirmed.