State v. Stites

698                    August 28, 2024                  No. 624

   This is a nonprecedential memorandum opinion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.
                      BRENDA STITES,
                    Defendant-Appellant.
                  Polk County Circuit Court
                    21CR33662; A179050

   Monte S. Campbell, Judge.
   Submitted January 19, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah De La Cruz, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
   PAGÁN, J.
   Remanded for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2024)               699

         PAGÁN, J.
         In this criminal appeal, defendant challenges her
judgment of conviction for driving under the influence of
intoxicants (DUII), ORS 813.010, and unlawful possession
of methamphetamine, ORS 475.894. In three assignments
of error, defendant contends that the trial court erred by
imposing special probation conditions that require defendant to (1) submit to random searches of her person, vehicle,
property, or premises if the officer has reasonable grounds
to believe evidence of a probation violation will be found,
(2) report for a substance abuse evaluation and participate, “cooperate with, and successfully complete the recommended treatment … including any aftercare or follow-up
care,” and (3) submit to “random blood, breath, saliva, or
urine tests” at her own expense to determine compliance
with probation. Because the special conditions issued in the
written judgment differed from the court’s oral pronouncement of the sentence, we remand for resentencing.
         Defendant was charged with DUII and unlawful
possession of methamphetamine. At sentencing, the court
announced that it would sentence defendant to all “the general standard terms of probation” and that conditions would
apply:
       “THE COURT: All right. I will place you, on Count 1,
   13 months of probation with all the general standard terms
   of probation will apply. ….
      “… [S]ubmit to searches of your person, your household, your effects if the probation department has reason to
   believe here [sic] and violation of probation.
      “…
      “You’ll submit to random testing of your blood, breath,
   or urine at the request of the probation department. Be
   evaluated for any drug and alcohol issues following that
   evaluation, you’ll enroll in and successfully complete recommended treatment. ….
      “…
      “Count 2, you’ll be on probation on the same exact terms
   and conditions.”
700                                                            State v. Stites

         The written judgment ordered defendant to comply
with the general conditions of probation. The written judgment also ordered, as part of an “alcohol package,” several
special conditions, including those challenged on appeal:
       “… Defendant is subject to the following Special
    Conditions of Probation (ORS 137.540(2))[.] Defendant
    shall:
        “…
       “Submit to the random search of person, vehicle, property, or premises over which I have ownership, possession
    or control, upon the direction of any law enforcement/
    supervising probation officer if the officer has reasonable
    grounds to believe that evidence of a violation will be found.
        “…
       “Report for alcohol/substance abuse evaluation at the
    direction of the defendant’s probation officer and, if treatment is recommended, shall enroll in, participate in, cooperate with, and successfully complete the recommended
    treatment of the treating organization, including any aftercare or follow-up care.
        “…
       “Submit to random blood, breath, saliva, or urine tests,
    at the defendant’s expense, at the direction of any law
    enforcement or supervising probation officer having reasonable grounds, to determine compliance with probation.”1
         In a combined argument, defendant contends that
the trial court erred when it imposed the challenged special
conditions because the conditions differed from the court’s
oral pronouncement of the sentence.2
         The “[j]udgment in a criminal case must be pronounced in open court” and that judgment must include the
sentence. State v. Bonner, 

, 

 (1989).
That requirement is rooted in the defendant’s constitutional
     1
       Defendant did not object to the conditions. However, the special conditions
in the judgment differ from the court’s oral pronouncement, so defendant was not
required to object to preserve her assignments of error for appellate review. State
v. Worthey, 

, 

 (2020).
     2
       Defendant also argues that the trial court erred because the special conditions conflict with the general conditions of probation. However, based on our
disposition on other grounds, we do not address that argument.
Nonprecedential Memo Op: 

 (2024)              701

right to be present at sentencing. State v. Jacobs, 

, 

 (2005). Accordingly, a trial court must
state on the record, and in the defendant’s presence, the
terms of the defendant’s sentence. 

 A trial court must
announce special conditions of probation at sentencing, and
its failure to do so requires a remand for resentencing. See
State v. Anotta, 

, 

 (2020)
(remanding for resentencing on those grounds).
          Here, having reviewed the record, we agree with
defendant that the trial court erred in imposing special
conditions in the written judgment that differed from the
conditions announced at sentencing. While the court did
announce that defendant would be required to submit to
searches, the court did not announce that the searches
would be random or that it would include searches of defendant’s property. The court also did not announce that defendant would be required to pay for blood, breath, or urine
testing. See, e.g., State v. Sankey, 

, 847, 

 (2018) (error to impose $100 bench probation fee and
$255 DUII conviction fee outside the presence of the defendant); State v. Hurst, 

, 

(2016) (error to impose $200 fine that was not “announced
… in open court”). The court also announced that defendant would be required to successfully complete treatment
but did not announce that it included aftercare or follow-up
care. As a result, the trial court did not satisfy its obligation
to announce the special conditions of probation at sentencing. Therefore, we remand for resentencing.
         Remanded for resentencing; otherwise affirmed.