State v. Hershey

                                   832

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
    Submitted October 21, 2022, remanded for entry of judgment omitting
   erroneous “sentence instruction” term, otherwise affirmed May 10, 2023


                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
             KENNETH LAWRENCE HERSHEY,
                   Defendant-Appellant.
               Klamath County Circuit Court
                   17CR66503; A174834


   Andrea M. Janney, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mark J. Kimbrell, 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 Ortega, Presiding Judge, and Hellman, Judge,
and Landau, Senior Judge.
   HELLMAN, J.
   Remanded for entry of judgment omitting erroneous
“sentence instruction” term; otherwise affirmed.
Nonprecedential Memo Op: 

 (2023)                                 833

           HELLMAN, J.
        Defendant appeals the trial court’s imposition of
a sentencing instruction on his sentence of discharge. We
remand for entry of judgment omitting the sentencing
instruction.
         Defendant was charged with three counts of animal
neglect in the second degree, ORS 167.325. As part of a plea
agreement, defendant entered an Alford plea1 to one of the
counts; the others were dismissed. As relevant here, the plea
agreement stated that defendant “understand[s] that the
district attorney agrees to make the following recommendation to the court about my sentence and/or other pending
charges: … Defendant may not have dogs in his possession
while in the state of Oregon.”
        At sentencing, the trial court imposed the following
sentence: “It is a sentence of discharge. Defendant may not
have dogs in his possession while in the state of Oregon.”
Defendant did not object to the trial court’s imposition of the
condition. The judgment included a “sentence instruction”
that “Defendant is not allowed to possess dogs in the State
of Oregon for life.”
        In his sole assignment of error, defendant argues
that the trial court erred when it prohibited him from
possessing dogs for life because a court lacks authority to
impose sentencing instructions on a sentence of discharge.
        Defendant admits that his assignment of error is
unpreserved, but asks us to review for plain error. The state
disputes that our review is for plain error. Instead, the state
takes the position that defendant invited the error. We agree
with defendant.
         Under the invited error doctrine, a party who is
actively instrumental in bringing about an alleged error
cannot later complain about such alleged error. E.g., State
    1
      A plea pursuant to North Carolina v. Alford, 

, 

, 

 (1970), is one “in which the defendant does not admit commission of
the criminal act or asserts that he is innocent. In such a situation, the trial court
must determine that there is a factual basis for the plea.” State v. Sullivan, 

, 28 n 1, 

 (2005), rev den, 

 (2006).
834                                          State v. Hershey

v. Kammeyer, 

, 

, rev den,

 (2009). Here, defendant was not “actively instrumental” in bringing about the error. He did not propose the
condition, argue for its imposition, or agree to it. Instead, he
signed a plea agreement in which he understood that the
state would recommend the condition to the trial court. In
essence, defendant agreed that he understood what position
the state would take at sentencing and that he did not object
to having the state make the argument. On those facts,
defendant cannot be said to have invited the error.
         Defendant did not cause the error, but neither did
he object when the court ordered the condition. Defendant’s
failure to object resulted in an unpreserved claim of error.
Our review is thus for plain error.
         Plain error review is a two-step process. We must
first determine that the error is plain, which means that it
is “an error of law, obvious and not reasonably in dispute,
and apparent on the record without requiring the court to
choose among competing inferences.” State v. Vanornum,

, 

 (2013). If those three elements
are met, we then must determine whether to exercise our
discretion to correct the error. Ailes v. Portland Meadows,
Inc., 

, 

 (1991).
         Here, the error qualifies as plain because under
ORS 137.010 a court lacks legal authority to impose sentence
instructions on a sentence of discharge, as the trial court
clearly did here. See, e.g., State v. Brunson, 

, 

 (2020) (per curiam) (so holding for sentence instructions on a sentence of incarceration under ORS
137.010, which does not provide for sentence instructions);
State v. Hall, 

, 

 (2016), rev den,

 (2017) (same). As defendant correctly points out,
we have routinely exercised our discretion to correct legally
erroneous sentence instructions. We do so here as well.
        Remanded for entry of judgment omitting erroneous “sentence instruction” term; otherwise affirmed.