State v. Martinez

630                     March 27, 2024                  No. 194

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
          CLAUDIA YOHANA MARTINEZ,
                 Defendant-Appellant.
            Yamhill County Circuit Court
   22CR16609, 22CR28780; A180333 (Control), A180334

   Ladd J. Wiles, Judge.
   Submitted February 5, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stacy M. Du Clos, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
   Before Lagesen, Chief Judge, and Egan, Judge.
   EGAN, J.
   Remanded for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2024)                           631

           EGAN, J.
         Based on incidents that occurred in March and
June 2022, defendant pleaded guilty to two counts of driving while under the influence of intoxicants (DUII), ORS
813.010(4), and one count of driving while suspended, ORS
811.182(4). In this consolidated appeal, defendant challenges
special conditions of probation that were not announced in
open court at sentencing, but that appear in her judgments
of conviction in Case Nos. 22CR16609 and 22CR28780.
Defendant raises 16 assignments of error relating to eight
special conditions of probation included in each of the two
judgments. The state concedes the errors. We agree with
and accept the state’s concession. Accordingly, we remand to
the trial court for resentencing in both cases.1
         “We review sentencing decisions for legal error.”
State v. Tison, 

, 

, rev den,

 (2018). “A criminal defendant has the right
to have their sentence announced in open court.” State v.
Priester, 

, 

, rev den, 

 (2023). A trial court commits reversible error if it does
not do so, and the result is usually a resentencing. State v.
Bates, 

, 

 (2021).
          At sentencing, the state’s recommendation included
a reference to “the standard DUII alcohol package.” The
trial court determined that it would follow the state’s recommendation, which included probation “subject to the general
conditions of probation, as well as the—we call it the DUII
package.” The trial court explained that the DUII package
“will require you to reattend the victim impact panel, [and]
continue with your course of treatment to address your
alcohol issue. It will require that you remain sober, subject
to random testing, and you know, not consume or possess
alcohol.”
        However, the written judgment in each case contained eight special conditions of probation that the trial
court did not describe when explaining “the DUII package.”
Those special conditions prohibit defendant from using or

   1
     As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge
panel.
632                                          State v. Martinez

possessing controlled substances and from entering certain
kinds of establishments. They also require defendant to take
Antabuse if directed by her probation officer, to undergo
specified screenings and evaluations for treatment, not to
switch or transfer treatment programs without permission,
and to pay costs and fees associated with screening, evaluation, and treatment.
         On appeal, defendant argues that the record does
not establish that the parties understood the special conditions of probation implied by the trial court’s use of the
shorthand phrase, “the DUII package.” As we recently
explained in Priester,
   “two things must be true before use of a shorthand phrase
   can legally suffice as announcing a sentencing condition
   in open court. 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.
   Second, it must be apparent somewhere in the record that
   the shorthand phrase included the conditions that were
   eventually listed in the written judgment.”

. Here, having reviewed the record, it
is not apparent that the parties understood that the shorthand phrase “the DUII package” included eight of the special conditions of probation included in each of the two judgments of conviction. As a result, the trial court’s use of that
phrase did not satisfy its obligation to announce the sentence in open court. Therefore, we remand for resentencing
in Case Nos. 22CR16609 and 22CR28780.
        Remanded for resentencing; otherwise affirmed.