State v. Davis

                                   136

   This is a nonprecedential memorandum opinion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 August 21, portion of judgment imposing $255 DUII conviction fee
 vacated, remanded for resentencing, otherwise affirmed September 13, 2023


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                     DEON AMRE DAVIS,
                     Defendant-Appellant.
                Multnomah County Circuit Court
                     19CR45595; A177714


   Andrew M. Lavin, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and James Brewer, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jordan R. Silk, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Hellman, Judge,
and Armstrong, Senior Judge.
   ORTEGA, P. J.
   Portion of judgment imposing $255 DUII conviction fee
vacated; remanded for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2023)            137

        ORTEGA, P. J.
         Defendant appeals a judgment of conviction for
driving under the influence of intoxicants (DUII), ORS
813.010; unlawful possession of a firearm, ORS 166.250;
and possession of a loaded firearm in public, Portland City
Code 14A.60.010. He first argues that the sentencing court
erred in imposing a $255 DUII conviction fee that was not
announced in open court. The state concedes that error, and
we accept that concession. See generally State v. Bilton, 

, 

 (2021) (“It is well-settled that
the trial court errs when it imposes the $255 DUII fee in a
judgment without first announcing it at sentencing.”).
         Defendant also argues that the trial court plainly
erred in imposing a 30-day jail sentence on his conviction for
possession of a loaded firearm in public. He acknowledges
that Portland City Code 14A.60.010(E)(2) provides that
“the court must impose a mandatory minimum sentence of
30 days for violation of this Section.” He argues, however,
that the court plainly erred in doing so because it did not
articulate that it understood that it nonetheless had authority to suspend execution of the sentence it had just imposed.
He acknowledges that the 30-day jail sentence has long
since been fully served but urges this court to address his
argument pursuant to ORS 14.175 as involving an issue that
is capable of repetition but likely to evade judicial review in
the future.
         Given that defendant offers no persuasive argument
in support of his position that the court plainly erred, this
is not an appropriate case for us to exercise discretion under
ORS 14.175. See Eastern Oregon Mining Assoc. v. DEQ, 

, 

 (2017), aff’d, 

(2019), cert den, ___ US ___, 

 (2020) (noting
that similar considerations govern exercise of discretion for
plain-error review and review pursuant to ORS 14.175).
        Portion of judgment imposing $255 DUII conviction
fee vacated; remanded for resentencing; otherwise affirmed.