State v. McLaughlin

                                   296

   This is a nonprecedential memorandum opinion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 May 9; in Case Number 21CR10075, remanded for resentencing,
otherwise affirmed, in Case Number 20CN02979, affirmed June 7. petitions for
    review denied August 31 (

) and October 5, 2023 (

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                 SEAN DAVID McLAUGHLIN,
                      Defendant-Appellant.
                Clackamas County Circuit Court
                    21CR10075, 20CN02979;
                  A176405 (Control), A176359


   Susie L. Norby, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen E. Daniels, Deputy Public Defender,
Office of Public Defense Services, filed the opening brief for
appellant. Sean David McLaughlin filed the supplemental
brief pro se.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Susan G. Howe, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
   TOOKEY, P. J.
   In Case Number 21CR10075, remanded for resentencing;
otherwise affirmed. In Case Number 20CN02979, affirmed.
Nonprecedential Memo Op: 

 (2023)                               297

            TOOKEY, P. J.
         Defendant appeals a judgment convicting him of four
counts of stalking, ORS 163.732 (Case No. 21CR10075), and
a judgment revoking his probation (Case No. 20CN02979),
raising three assignments of error. For the reasons that follow, we remand for resentencing.
         In his first assignment of error, defendant challenges his conviction in Case Number 21CR10075, arguing
that the trial court erred in not allowing him to withdraw
his guilty pleas in that case. That challenge is not reviewable under ORS 138.105(5), which—except in circumstances
not present here—“precludes a defendant who pleads guilty
… from obtaining appellate review of legal challenges to
the conviction.” State v. Colgrove, 

, 

 (2022); State v. Merrill, 

, 

, adh’d to as modified on recons, 

, 

 (2021) (“The text [of ORS 138.105] makes the legislature’s intentions clear: Unless otherwise provided, we have
no authority to review on appeal challenges seeking to invalidate convictions based on pleas.”); see also ORS 138.105(5)
(“The appellate court has no authority to review the validity
of the defendant’s plea of guilty[.]”).
         Regarding his second assignment of error, defendant argues that the trial court erred in imposing multiple special conditions of probation, because at defendant’s
sentencing, the court simply referenced, in shorthand, the
“substance abuse package” and “domestic violence package”
without explanation as to what specific conditions it was
imposing, and the challenged conditions appeared for the
first time in the written judgment.
         Recently, in State v. Priester, 

,

 (2023), we emphasized that “two things must
be true before use of a shorthand phrase can legally suffice as announcing a sentencing condition in open court.”1
First, “it must be apparent somewhere in the record that
all parties had the same understanding of the meaning of
the shorthand phrase and what it referred to.” 

 And second, “it must be apparent somewhere in the record that the
   1
       Priester was decided during the pendency of defendant’s appeal in this case.
298                                     State v. McLaughlin

shorthand phrase included the conditions that were eventually listed in the written judgment.” Id. at 582-83. The
record in this case does not reflect that both conditions were
met; therefore, as in Priester, we remand for resentencing.
See id. at 589 (remanding for resentencing).
          Because we must remand for resentencing to correct
that error, we do not reach defendant’s third assignment of
error about the special condition of probation regarding telephone records, which the trial court will have an opportunity to address in the first instance on remand. See State v.
Manning, 

, 

 (2019), rev den,

 (2020) (declining to address contention that trial
court plainly erred in imposing sentence, where the trial
court would have an opportunity to address that issue in the
first instance on remand).
        In Case Number 21CR10075, remanded for resentencing; otherwise affirmed. In Case Number 20CN02979,
affirmed.