State v. Henderson

                                       127

            Submitted December 17, 2020, affirmed February 3, 2021


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                DWAYNE ANDREW HENDERSON,
                      Defendant-Appellant.
                  Lincoln County Circuit Court
                      18CR63853; A170357
                                   

     Defendant appeals from a judgment of conviction for one count of violating
a court’s stalking protective order, ORS 163.750. He argues that the trial court
erred in imposing two unduly restrictive probation conditions—one requiring
him to obtain permission before travelling to Wallowa County, where the victim’s family lives, and another prohibiting him entirely from travelling to the
state of Arizona, where the victim lives. The state responds that defendant failed
to preserve his objection below and that the severity of the offense justifies the
broad geographic restrictions. Held: Although the condition prohibiting travel to
Arizona is troublingly broad, it is not appropriate to exercise discretion to correct
it as plain error. Had defendant objected below, the record would be more fully
developed as to the need for such a condition and the burden, if any, it imposes on
defendant. Moreover, nothing in the record suggests any reason that defendant
has or will have to go to Arizona such that the restriction will have any practical
effect. Should the need to travel to Arizona arise, defendant can seek modification of his probation conditions via the trial court’s ongoing jurisdiction under
ORS 137.540(9)(a).
    Affirmed.



    Sheryl Bachart, 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 Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
    KAMINS, J.
    Affirmed.
128                                        State v. Henderson

        KAMINS, J.
         Defendant was convicted of violating a stalking protective order as part of a long history of stalking a former
high school classmate. Although he did not object below,
defendant now challenges two conditions of his probation
that require him to obtain permission before traveling to
Wallowa County, where the victim’s family lives, and prohibit him entirely from traveling to the state of Arizona,
where the victim lives. The state argues that the severity of
the offense—one that the trial court described as “the most
chilling stalking case [it] ever heard—ever”—justifies these
broad geographic restrictions. Specifically, the state points
to defendant’s long history of locating the victim despite her
efforts to hide, his persistence over many years, and his
continued refusal to abide by the stalking protective order.
Although we agree that the condition prohibiting travel to
Arizona is troublingly broad, we cannot conclude that it is
appropriate to reverse it as plain error and we therefore
affirm.
         ORS 137.540(2) grants a trial court broad discretion
in imposing special conditions of probation, but those conditions must be “reasonably related to the crime of conviction
or the needs of the probationer for the protection of the public
or reformation of the probationer, or both.” State v. Gaskill,

, 

 (2012). Moreover,
any condition cannot be more restrictive than necessary to
achieve the goals of probation. State v. Donahue, 

, 

 (2011). We review the imposition of
probation conditions for errors of law. State v. Borders, 

, 

 (2018).
        Because defendant did not object below, we must
determine whether to review the unpreserved error.
Generally, that inquiry involves two stages. First, we determine whether the error is plain; that is, whether it is “an
error of law, obvious and not reasonably in dispute, and
apparent on the record without requiring the court to choose
among competing inferences.” State v. Dilallo, 

, 

 (2020) (quoting State v. Vanornum, 

, 

 (2013)). Second, we must determine whether to exercise our discretion to correct the error.
Cite as 

 (2021)                               129

 That determination is guided by several considerations,
including “the competing interests of the parties, the nature
of the case, the gravity of the error, and the ends of justice in
the particular case.” State v. Decleve, 

,

 (2019).

         Defendant correctly observes that “we have consistently struck down broad geographic restrictions.” State v.
Bell, 

, 

 (2016). In Bell, we struck
a special condition that prevented a defendant from leaving
Lincoln County without first obtaining permission. 

. The trial court imposed the condition to ensure that the
defendant did not engage in unnecessary costly travel until
she paid restitution from her gambling-related offenses.

. We concluded that the restriction was not reasonably related to defendant’s crimes because the record
did not reveal a nexus between the geographic restriction
and those crimes. 

. Nor was the restriction
reasonably related to protecting the public, given that the
record did not reflect why defendant’s travel would prevent
her from making restitution payments. 

. We have
repeatedly reached similar conclusions in other cases. See
State v. Jacobs, 

, 

 (1984)
(striking a prohibition that prevented the defendant—who
had committed criminal misbehavior against his immediate
neighbors—from residing in the entire city of Troutdale);
State v. Ferre, 

, 

 (1987) (striking a condition barring the defendant from entering Coos
County because he posed a threat only to North Bend).

         Despite the breadth of the condition—particularly
the one prohibiting defendant from entering the state of
Arizona—we decline to exercise our discretion to correct
any error for several reasons. First, had defendant objected
below, the record would be more fully developed as to the
need for such a condition or the burden, if any, it imposes on
defendant. Second, defendant has another avenue to modify the conditions of his probation: the trial court’s ongoing
jurisdiction. See ORS 137.540(9)(a) (allowing the trial court
to modify the conditions of probation at any time). The final
factor weighing against exercising our discretion is that
an additional condition of defendant’s probation already
130                                      State v. Henderson

requires him to seek permission to leave the state of Oregon.
Nothing in the record suggests any reason defendant would
need to go to Arizona such that the additional restriction
imposed on that state in particular will have any practical
effect. For these reasons, we decline to exercise our discretion to reverse the restriction as plain error.
        Affirmed.