State v. Othman

                                   71

   Submitted September 3; remanded for resentencing, otherwise affirmed
                             October 6, 2021


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                  OMAR SAID OTHMAN,
                    Defendant-Appellant.
               Washington County Circuit Court
                    19CR64906; A172981
                              

   Rebecca D. Guptill, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Francis C. Gieringer, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
   PER CURIAM
   Remanded for resentencing; otherwise affirmed.
72                                          State v. Othman

        PER CURIAM
         Defendant, who pleaded guilty to offensive littering, ORS 164.805, appeals a supplemental judgment imposing restitution in the amount of $1,047.56. At sentencing,
the trial court told defendant when the restitution hearing
would be held but did not tell him that a failure to appear
at the hearing would result in a waiver of his right to object
to restitution. The written judgment, however, did provide
that a failure to appear at the restitution hearing would
result in defendant waiving his right to object to the imposition and amount of restitution. Defendant failed to appear
at sentencing, and the trial court imposed restitution in
his absence. On appeal, defendant argues that the court
plainly erred in imposing restitution in his absence, and
also challenges the sufficiency of the evidence in support
of the restitution award. The state concedes that the trial
court plainly erred in imposing restitution in defendant’s
absence. We agree and accept that concession, and therefore
do not reach defendant’s other argument. A valid waiver of
defendant’s right to be present cannot be presumed in this
circumstance. See State v. Sidener, 

, 

 (2020) (correcting similar error as plain error). For the
reasons expressed in Sidener, we exercise our discretion to
correct the error.
        Remanded for resentencing; otherwise affirmed.