State v. Carlson

                                      337

 Submitted December 30, 2021; remanded for resentencing, otherwise affirmed
                             February 2, 2022


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    GARY EUGENE CARLSON,
                       Defendant-Appellant.
                    Yamhill County Circuit Court
                       20CR25605; A174333
                                  

    Defendant challenges special conditions of probation that prohibit him from
consuming or possessing marijuana and from entering marijuana dispensaries.
He argues that the conditions are unlawful under ORS 137.540(1)(b), which establishes a general condition of probation regarding “controlled substances,” and
ORS 137.542(2), which requires that conditions related to marijuana be imposed
upon those who hold marijuana registry identification cards in the same manner
as conditions relating to prescription drugs. Held: Under State v. Heaston, 

, 

 (2021), the term “controlled substances” in ORS 137.540(1)(b)
does not include marijuana, so the challenged conditions were not unlawful in
connection with ORS 137.540(1)(b). However, to the extent that defendant held a
marijuana registry identification card, the conditions would have been unlawful
under ORS 137.542(2). Because the conditions were announced for the first time
in the judgment, defendant was not given an opportunity to establish whether he
was a cardholder, necessitating remand.
    Remanded for resentencing; otherwise affirmed.



    Ladd J. Wiles, Judge.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Nora Coon, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Julia Glick, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, and Aoyagi, Judge, and
Armstrong, Senior Judge.
    AOYAGI, J.
    Remanded for resentencing; otherwise affirmed.
338                                          State v. Carlson

        AOYAGI, J.
         Defendant was convicted of felony driving under
the influence of intoxicants, ORS 813.011, and driving while
suspended or revoked, ORS 811.182. As part of his sentence,
he is serving two years of supervised probation with general and special conditions. The special conditions imposed
in the sentencing judgment include (1) that defendant “not
consume or possess alcoholic beverages or marijuana” and
(2) that defendant “not enter any establishment whose primary income is derived from the sale of alcoholic beverages
or marijuana (taverns, bars, liquor stores, dispensaries,
etc.).” Defendant challenges those conditions as unlawful.
Because the conditions were not announced at sentencing
but appeared for the first time in the judgment, defendant
is excused from the normal requirements to preserve the
claim of error for appeal. State v. Fryer, 

, 663
& n 1, 

 (2019).
         We review for legal error whether a special condition
of probation conforms to statutory limits. State v. Heaston,

, 

 (2021). Here, defendant contends that the challenged conditions are unlawful
because of two statutes. ORS 137.540(1)(b) creates a general
condition of probation that a probationer shall “[n]ot use or
possess controlled substances except pursuant to a medical
prescription.” And ORS 137.542(2) provides that “if a person
who holds a registry identification card is sentenced to probation, supervision conditions related to the use of usable
marijuana, medical cannabinoid products, cannabinoid concentrates or cannabinoid extracts must be imposed in the
same manner as the court would impose supervision conditions related to prescription drugs.”
         With respect to the general condition of probation
in ORS 137.540(1)(b), it is well established at this point
that trial courts may craft special conditions of probation
to “supplement” the general and special conditions already
created by the legislature, but not to “override” them. State
v. Bowden, 

, 

 (2018); see also
State v. Schwab, 

, 

 (1989)
(ORS 137.540(2) “only allows a court to impose other types of
conditions that are not already addressed in the statute.”).
Cite as 

 (2022)                                                 339

Thus, if the general condition regarding “controlled substances” in ORS 137.540(1)(b) encompassed marijuana, the
trial court’s ability to impose a special condition regarding
marijuana would be limited, as defendant argues.
          Shortly after defendant filed his opening brief, however, we decided Heaston. There, the defendant had been
found by the trial court to have violated the general condition of probation in ORS 137.540(1)(b)—that he not “use or
possess controlled substances except pursuant to a medical
prescription”—based on his use of recreational marijuana.
Heaston, 

. The defendant argued that
marijuana was no longer a “controlled substance” within the
meaning of ORS 137.540(1)(b), while the state argued that
it was. 

 As a matter of statutory construction, we agreed
with the defendant. Considering the comprehensive changes
that the 2017 legislature made to Oregon’s laws to reflect the
2014 legalization of recreational marijuana, we concluded
that the 2017 legislature “did not intend for the phrase ‘controlled substances’ in ORS 137.540(1)(b) to include marijuana.” 

. It followed that the defendant could not
be found in violation of the general condition in ORS 137.540
(1)(b) for using recreational marijuana. 

.
          Heaston forecloses defendant’s reliance on ORS
137.540(1)(b) to challenge the special conditions in this case.
Because the general condition in ORS 137.540(1)(b) does not
apply to marijuana, the existence of that general condition
is irrelevant to the imposition of special conditions relating
to marijuana.1 We therefore reject defendant’s argument
based on ORS 137.540(1)(b).
     1
       We note that, to the extent that there may appear to be tension between
Bowden and Heaston, there is not in reality. In Bowden, we held that it was
unlawful to have imposed special probation conditions on the defendant regarding marijuana for two reasons: (1) because the general condition regarding “controlled substances” in ORS 137.540(1)(b) limited the court’s ability to impose special conditions regarding marijuana, under the principle articulated in Schwab,

; and (2) because ORS 137.542 limited the court’s ability to
impose special conditions regarding marijuana on a registry cardholder. Bowden,

. As to the former point, it is significant that we were reviewing a 2016 judgment. It was the 2017 legislature’s work—not the 2014 legalization
of recreational marijuana itself—that led us to conclude in Heaston that the term
“controlled substances” in ORS 137.540(1)(b) no longer includes marijuana. 

. In short, Bowden considered the pre-2017 meaning of “controlled substances” in ORS 137.540(1)(b), whereas Heaston addressed the post-
2017 meaning of “controlled substances” in ORS 137.540(1)(b).
340                                          State v. Carlson

         As for defendant’s argument based on ORS
137.542(2)—which requires conditions related to marijuana to be imposed upon those who hold marijuana registry identification cards “in the same manner as the court
would impose supervision conditions related to prescription
drugs”—the state concedes that the trial court erred in
imposing the special conditions that it did in the manner
that it did, but it maintains that reversal is not the appropriate remedy. Instead, the state urges us to remand for
defendant to be given an opportunity to provide evidence
that he holds a marijuana registry identification card. That
approach is consistent with recent case law, which implicitly construes ORS 137.542(2) as making the holding of a
marijuana registry identification card a prerequisite to its
application. See ORS 137.542(2) (imposing restrictions on
the probation conditions that may be imposed “if a person
who holds a registry identification card is sentenced to probation”); ORS 137.542(2) (2017) (restricting “the conditions
of supervision of a person who holds a registry identification
card and is sentenced to probation”).
         In State v. Kilgore, 

, 

 (2019), the trial court had imposed a special probation condition that the defendant not consume or possess
marijuana, which appeared for the first time in the judgment. The defendant argued on appeal that that condition
was unlawful under ORS 137.542(2) and asked that it either
be stricken or modified to allow the use of medical marijuana. 

. The state argued in response that ORS
137.542(2) does not apply in all circumstances but only
where the defendant is a medical marijuana cardholder,
and it urged us to remand for resentencing so that the
trial court could make that factual determination. 

 We
agreed with the state and remanded for the trial court
“to determine whether defendant holds a medical marijuana registry identification card, thus triggering the statute” and, “[i]f so,” to “modify the special conditions to comply with the statute.” 

. We have taken the same
approach in other cases in which special probation conditions have been challenged based on ORS 137.542(2). See
State v. Miller, 

, 

 (2019);
State v. Fryer, 

, 

 (2019);
Cite as 

 (2022)                                                 341

State v. Jerscheid, 

, 

(2018).2
         Accordingly, the trial court erred in imposing special conditions of probation that completely prohibit defendant from using or possessing marijuana and from entering any marijuana dispensary, without giving defendant an
opportunity to establish whether he holds a marijuana registry identification card. If defendant is a cardholder, then,
under ORS 137.542(2), the trial court must impose supervision conditions related to usable marijuana, medical cannabinoid products, cannabinoid concentrates, and cannabinoid
extracts in the same manner as it would impose supervision
conditions related to prescription drugs.3
           Remanded for resentencing; otherwise affirmed.




    2
      In State v. Cunningham, 

, 

 (2019), we
rejected an unpreserved argument that ORS 137.542(2) should be construed such
that, even “in the absence of evidence that the person holds a registry identification card, the probation conditions must … treat medically prescribed marijuana the same as other prescription medications.” Because “the text of the statute does not obviously require that reading,” among other things, we concluded
that any error was not plain. 

 At the same time, we acknowledged that we
have never addressed that “precise issue” in a preserved posture. 

 In this case,
defendant has not developed any argument akin to the one made in Cunningham,
and so we follow existing precedent in terms of our disposition. In doing so, however, we do not foreclose future arguments any more than Cunningham did. We
also do not foreclose future arguments regarding the meaning of “in the same
manner as it would impose supervision conditions related to prescription drugs,”
ORS 137.542(2), a phrase that we have never formally construed.
    3
      Defendant has not contested on appeal that the challenged special conditions are “reasonably related to the crime of conviction or the needs of the probationer for the protection of the public or reformation of the probationer, or both.”
ORS 137.540(2). We therefore do not consider that issue.