308 Or. App. 155 - State v. Sidener

                                  155

   Submitted November 9; remanded for resentencing, otherwise affirmed
                           December 23, 2020


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
           CHRISTOPHER MICHAEL SIDENER,
                  Defendant-Appellant.
             Washington County Circuit Court
                   19CR05017; A171114

478 P3d 605

Theodore E. Sims, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erin J. Snyder Severe, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
156 State v. Sidener

PER CURIAM
Defendant appeals an amended judgment imposing restitution. He pleaded guilty to first-degree criminal
trespass, ORS 164.255, and was sentenced to probation.
The original judgment of conviction contained a condition
of probation that failing to appear at the restitution hearing
“will result in waiving your right to object to the imposition, amount or distribution” of restitution, although that
condition was not announced in open court. Defendant did
not appear at the restitution hearing and the court imposed
restitution in his absence in the amount of $592.15.
On appeal, defendant contends that the trial court
plainly erred in imposing restitution in his absence. The
state concedes that the court erred in doing so. A valid waiver
requires intentional relinquishment of a known right. We
cannot assume from the presence of a waiver provision in
a judgment that a defendant voluntarily and intentionally
waived a right to be present at the restitution hearing. See
State v. Kesch,

150 Or App 288, 291

946 P2d 322

 (1997)
(provision in judgment that, if defendant failed to maintain
contact with attorney, he would waive the right to object to
restitution did not constitute an intentional relinquishment
of right to be present at restitution hearing). We exercise our
discretion to correct the error given the amount of restitution involved and the gravity of the error. See, e.g., State v.
Howard,

292 Or App 517, 522

424 P3d 803

 (2018) (exercising discretion to correct erroneous restitution in the amount
of $360).
        Remanded for resentencing; otherwise affirmed.