State v. Hester

                                  456

     Submitted May 21; remanded for resentencing, otherwise affirmed
                          December 15, 2021


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
              JOHNNIE WILLIAM HESTER,
                   Defendant-Appellant.
              Washington County Circuit Court
                   17CR68240; A171196
                               

  Ricardo J. Menchaca, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mark Kimbrell, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Robert M. Wilsey, 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.
Cite as 

 (2021)                            457

        PER CURIAM

         Defendant pleaded guilty to fourth-degree assault
constituting domestic violence, ORS 163.160 (Count 1), and
entered into a deferred-sentencing program agreement.
Upon determining that defendant had violated some of the
terms of the agreement, the trial court revoked defendant’s
deferred sentence and entered a judgment of conviction for
fourth-degree assault. Defendant, on appeal, first assigns
error to that revocation, arguing that the trial court impermissibly relied on hearsay evidence. Defendant, in his second
and third assignments of error, argues that the trial court
impermissibly imposed two special conditions of probation:
“Disclose any potential intimate relationships (prior to intimacy) to [defendant’s] supervising officer” and “Submit to
search of person, residence, vehicle and property including
consent to search computer and telephonic devices.” Both
conditions appeared in the judgment without having been
announced in defendant’s presence.

         When defendant’s appeal was submitted, it appeared
that defendant’s two-year probation period had ended. We
therefore asked the parties to notify us whether defendant’s
probation term had, in fact, ended and whether the second and third assignments of error were moot. Defendant’s
counsel responded that defendant’s probation term had
ended but that an outstanding bench warrant meant that
the trial court retained authority to find him in violation
of his probation, which would therefore permit the court to
extend defendant’s probation term. Consequently, defendant
asserts that his second and third assignments of error are
not moot. The state concedes that those assignments are not
moot but moves to dismiss defendant’s appeal under ORAP
8.05(3), which allows us to dismiss an appeal if we determine that the appellant is on escape or abscond status at the
time we review the motion to dismiss. Because the record
does not permit a requisite inference that defendant is personally aware of the outstanding bench warrant, the state
has not demonstrated that defendant has a conscious intent
to evade or avoid legal process. See State v. Ford, 

, 

 (2006) (“[T]he mere existence of
an unserved warrant does not establish that a person has
458                                            State v. Hester

absconded.”). Consequently, we deny the state’s motion to
dismiss.
         With that said, as to the second and third assignments of error, the state concedes that the trial court erred.
But the concession concerns the failure of the trial court to
orally impose the conditions in open court in defendant’s
presence, and the state does not concede defendant’s substantive arguments. The state asserts that the proper remedy is to remand for resentencing. See State v. Keen, 

, 

 (2020). We accept the state’s concession and remand for resentencing.
         As to defendant’s first assignment of error, that challenge is unreviewable. See State v. Merrill, 

, 

, adh’d to as modified on recons, 

, 

 (2021) (holding that ORS 138.105(5), with
some exceptions, bars appellate review of challenges that
seek to invalidate convictions based on guilty pleas); State v.
Redick, 

, 

 (2021) (following Merrill
and rejecting the defendant’s due process arguments).
        Remanded for resentencing; otherwise affirmed.