315 ORAPP 683 - State v. Hendershot

                                  683

   Submitted October 27; remanded for resentencing, otherwise affirmed
                           November 17, 2021


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
              DAISY RACHEL HENDERSHOT,
                   Defendant-Appellant.
               Umatilla County Circuit Court
                   19CR56433; A173217

499 P3d 892

Jon S. Lieuallen, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anna Belais, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Lauren P. Robertson, Assistant
Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
684 State v. Hendershot

PER CURIAM
Defendant, who was convicted of driving while suspended, ORS 811.182, and harassment, ORS 166.605, and
sentenced to probation, argues on appeal that the trial court
erred in imposing several conditions of probation. The disputed conditions of probation are that defendant not purchase firearms; that she not associate with any person
known to use, sell, manufacture, deliver, or possess unlawful controlled substances or narcotics, including marijuana;
and that she not knowingly be present at any place where
unlawful controlled substances are used, kept, sold, grown,
manufactured, or distributed. Defendant argues that the
trial court erred in including those conditions in the written
judgment because they were not announced in open court
at sentencing; she also argues that they are impermissible
conditions because they are not reasonably related to her
crimes.
The state first responds that defendant’s appeal
is moot because the trial court subsequently entered judgments finding defendant in violation of her probation and
continuing the probation, relying on our decision in State v.
Nguyen,

298 Or App 139

445 P3d 390

 (2019). We reject that
argument for the reasons set forth in State v. Bates,

315 Or App 402

500 P3d 746

 (2021) (overruling Nguyen). The state
alternatively posits that, if this case is not moot, then the
trial court erred in failing to announce the disputed conditions in open court and the case should be remanded on that
ground, so there is no reason for us to address defendant’s
substantive challenges to the conditions of probation in the
first instance. We agree that, under the circumstances in
this case, the issues concerning the challenged conditions of
probation should be left for the trial court to address in the
first instance on resentencing. See generally State v. Anotta,

302 Or App 176, 178

460 P3d 542

 (2020) (reaching similar
conclusion).
        Remanded for resentencing; otherwise affirmed.