State v. Jensen

                                  874

 Argued and submitted September 2, reversed and remanded for resentencing
                           September 29, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                  KARL ROBERT JENSEN,
                     Defendant-Appellant.
               Washington County Circuit Court
              D142313M, 17CR39789, 18CR72208;
              A171617 (Control), A171817, A171040
                              

   D. Charles Bailey, Jr., Judge.
   Francis C. Gieringer, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   Shannon T. Reel, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
   PER CURIAM
   Reversed and remanded for resentencing.
Cite as 

 (2021)                             875

        PER CURIAM
         Defendant appeals a judgment of conviction for
driving under the influence of intoxicants and seconddegree criminal mischief. He assigns error to the imposition
of a range of probation conditions that, on their face, do not
bear much relationship to his crimes of conviction. Although
defendant did not object to the imposition of the conditions,
he contends that preservation is excused because the trial
court did not make plain in open court what conditions it
was imposing. Alternatively, defendant contends that we
should review for plain error. The state argues that preservation is not excused and that we should decline to review
for plain error.
         Regardless of the issues with preservation, at least
one of the challenged conditions of probation—requiring
defendant to submit to searches by his probation officer
regardless of whether the officer has reasonable grounds for
the search—is invalid and plainly erroneous. State v. Meyer,

, 

 (2021); State v. Tharp,

, 

 (2021); State v. Schwab,

, 

 (1989). Although the
state argues otherwise, we conclude that the trial court’s
error in imposing a plainly unlawful condition of probation
is a grave one because of the legally impermissible infringement on defendant’s privacy that it authorizes. We therefore exercise our discretion to correct it. This obviates the
need to address the other challenged conditions of probation
because the remedy for this error is to reverse and remand
for resentencing. See Tharp, 

. On remand,
the court can take up any challenges that defendant has to
any of the other conditions of probation, should the court
reimpose those conditions on remand.
        Reversed and remanded for resentencing.