728
Submitted October 19, 2020; remanded for resentencing, otherwise affirmed
August 4; petition for review denied December 9, 2021 (369 Or 69)
STATE OF OREGON,
Plaintiff-Respondent,
v.
GLORIA MAE REED-HACK,
Defendant-Appellant.
Coos County Circuit Court
18CR55736; A169946
495 P3d 196
Martin E. Stone, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen Daniels, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna L. Jenkins, Assistant
Attorney General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
Cite as
313 Or App 728 (2021) 729
PER CURIAM
Defendant was convicted of first-degree arson,
ORS 164.325 (Count 1), first-degree criminal mischief, ORS
164.365 (Count 2), and second-degree criminal mischief, ORS
164.354 (Count 3). She appeals the judgment of conviction,
raising four assignments of error. We reject her first assignment without discussion. In her second assignment, she
asserts that the trial court plainly erred when it instructed
the jury that it could find defendant guilty by a nonunanimous verdict. Defendant did not object to the nonunanimous
verdict instruction, and neither party asked for the jury to
be polled when it returned its verdicts; the record lacks any
indication of whether the jury’s verdicts were unanimous.
Defendant asks us to review the error as structural error or
as plain error. Although the nonunanimous jury instruction
violated the Sixth Amendment, Ramos v. Louisiana, 590 US
___, ___,
140 S Ct 1390, 1396,
206 L Ed 2d 583 (2020), defendant’s arguments are foreclosed by State v. Dilallo,
367 Or
340,
478 P3d 509 (2020), and we, therefore, reject her second
assignment of error.
In defendant’s third assignment of error, she asserts
that the trial court erred when it imposed a special condition of probation on Count 1, requiring her to submit to a
polygraph examination at the discretion of the probation
officer. In her fourth assignment of error, she asserts that
the trial court erred when it imposed a special condition of
probation on Count 2, ordering her to comply with the probation conditions imposed on Count 1. Defendant makes two
arguments in support of her third and fourth assignments.1
She contends that the trial court erred because it did not
announce the special condition of probation in open court
during sentencing, and because the special condition “was
not reasonably related to defendant’s crimes of conviction,
the protection of the public, or defendant’s rehabilitation.”
The state concedes that it was error for the trial court to
impose in the judgment the special condition of probation
1
The state notes that defendant makes no separate argument with respect
to her fourth assignment of error and the state interprets defendant’s claim to be
that the special condition imposed for Count 2 effectively incorporated by reference the special condition for Count 1 that she submit to a polygraph examination. We proceed with that same understanding.
730 State v. Reed-Hack
on Counts 1 and 2—that defendant submit to a polygraph
examination as determined by the probation officer—
without announcing that condition in open court. We agree
with and accept the state’s concession, and we remand for
resentencing. See State v. Keen, 304 Or App 89,
466 P3d 95
(2020) (remanding for resentencing when probation condition was not announced in open court). We need not reach
defendant’s second argument, because it may be raised on
remand for the trial court to consider in the first instance.
See
id. at 90 (parties may raise, and court may address on
remand, whether and how condition is reasonably related to
offenses of conviction).
Remanded for resentencing; otherwise affirmed.
