State v. McClure

                                   643

Submitted February 7; remanded for entry of judgment omitting the challenged
               provision, otherwise affirmed March 4, 2020


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                  SHANE DANIEL McCLURE,
                     Defendant-Appellant.
                  Douglas County Circuit Court
                     18CR16450; A169093
                                

   Ann Marie Simmons, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erik Blumenthal, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and Powers, Judge, and
Kamins, Judge.
   PER CURIAM
   Remanded for entry of judgment omitting the challenged
provision; otherwise affirmed.
644                                        State v. McClure

        PER CURIAM
         Defendant appeals a judgment of conviction for one
count of first-degree sodomy, ORS 163.405, asserting that
the trial court erred when, in addition to imposing the mandatory sentence of 300 months’ imprisonment, it imposed
an additional condition that defendant “[e]nter into and
complete or be successfully discharged from a sex offender
treatment program approved by the supervising officer. The
program may include polygraph and plethysmograph and/
or any other approved testing. The person is responsible for
paying for the treatment program.” Although defendant did
not preserve an objection, he argues that the court plainly
erred in imposing this condition because, when imposing
a sentence of incarceration, trial courts lack authority to
impose either conditions of incarceration or conditions of
post-prison supervision. See State v. Lutcavich, 

, 

 (2018) (court plainly erred in imposing
sex-offender treatment requirement as condition of incarceration sentence); State v. Reed, 

, 

 (2010) (court plainly erred in imposing conditions of
post-prison supervision). The state agrees and concedes the
error. We accept that concession and exercise our discretion
to correct the error for the reasons set forth in Lutcavich,
295 Or App at 264 (sentencing a defendant according to law
serves the ends of justice and weighs in favor of exercising
plain error discretion).
        Remanded for entry of judgment omitting the challenged provision; otherwise affirmed.