State v. Keith

                                    271

 Submitted September 3; portion of judgment containing no-contact conditions
               reversed, otherwise affirmed October 20, 2021


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                    JAMES DAVID KEITH,
                       aka Keith James,
                     Defendant-Appellant.
                Multnomah County Circuit Court
                     19CN02988; A173158
                               

   Kelly Skye, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
   PER CURIAM
   Portion of judgment containing no-contact conditions
reversed; otherwise affirmed.
272                                            State v. Keith

        PER CURIAM
         Defendant appeals a judgment containing sanctions
for contempt of court for violating an Elderly and Disabled
Person Abuse Prevention restraining order. The trial court
imposed a sanction of six months in jail; the court did not
order probation, but the judgment includes conditions that
defendant is not to have contact with the victim and that he
is not to “trespass at victim’s residence and/or work place
or w/in 150 ft where [victim] goes w/o written permission of
PO.” In his sole assignment of error, he contends that the
trial court plainly erred by including those no-contact conditions in the judgment. He argues that the trial court did not
have statutory authority to impose stand-alone, indefinite
no-contact conditions as a punitive contempt sanction. See
ORS 33.105(2) (authorizing a fine, forfeiture, confinement,
probation, and community service as punitive contempt
sanctions).
         The state concedes that, under the circumstances
here, the trial court plainly erred in imposing no-contact
conditions that are not part of a probationary sentence and
agrees with defendant that the no-contact conditions of the
judgment should be vacated. See, e.g., State v. Langmayer,

, 

 (2010) (sentencing court
erred by imposing an instruction that the defendant have
“no contact” with the victim). We agree with and accept the
state’s concession and conclude that the gravity of the error
and the ends of justice weigh in favor of exercising our discretion to correct the error. See Ailes v. Portland Meadows,
Inc., 

, 382 n 6, 

 (1991) (factors to consider when deciding whether to exercise discretion to correct
plain error include gravity of error and ends of justice).
         Portion of judgment containing no-contact conditions reversed; otherwise affirmed.