State v. Day

238                 September 25, 2024              No. 679

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
                   TERRY LEE DAY,
                  aka Blein Nyles Qoi,
                  Defendant-Appellant.
              Jackson County Circuit Court
                  19CR08281; A180676

  Paul D. Moser, Judge Pro Tempore.
  Argued and submitted August 29, 2024.
   Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Erica L. Herb, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Tookey, Presiding Judge, Egan, Judge, and
Kamins, Judge.
  KAMINS, J.
  Affirmed.
Cite as 

 (2024)   239
240                                              State v. Day

        KAMINS, J.
        Defendant entered a conditional plea of no contest
to second-degree arson for starting a fire that burned a
detached garage, a fence, and a vehicle. ORS 164.315. In his
only assignment of error, defendant contends that the trial
court erred when it ordered him to abide by financial probation conditions that it did not announce in his presence in
open court. Reviewing for legal error, State v. Priester, 

, 

, rev den, 

 (2023), we
affirm.
         At defendant’s plea hearing, he agreed to pay $5,776
in restitution but asked the court to “reduce that to a civil
judgment” because of his housing instability. Defense counsel acknowledged that defendant “knows that he can …
schedule a payment plan for whatever he can afford.” The
trial court imposed the following conditions orally during
sentencing: “two years of bench probation. Conditions
include violate no law, comply with collections. I’ll waive any
fines or fees; however, there’s restitution in the amount of
$5,776.”
         The written judgment listed defendant’s one financial probation condition—the restitution amount of $5,776
discussed during the sentencing. However, the written
judgment included an additional sentence: “Comply with all
procedures of accounting office regarding payment of fines,
restitution and fees imposed. Abide by the financial conditions of probation document furnished to you by the court,
probation officer or Department of Justice collection agent.”
(Emphasis added.) Defendant contends that that emphasized sentence references an additional unspecified “financial conditions of probation document,” a document that is
not in the record and the contents of which were not orally
announced in defendant’s presence at sentencing.
         “A criminal defendant has a right to be present at
sentencing” and to have the sentence pronounced in open
court. State v. Dennis, 

, 596–97, 

(2020); Priester, 

. We have long held that
imposition of fines or fees in a written judgment when they
were not pronounced at sentencing is error. See Dennis, 303
Cite as 

 (2024)                               

-97 (collecting cases); State v. Jacobs, 

, 

 (2005). If a court uses a shorthand
phrase during sentencing, two conditions must be satisfied
for that phrase to legally suffice as announcing a defendant’s sentence in open court. Priester, 

.
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.” 

.
          In this case, the question is whether the trial court’s
use of a shorthand phrase—“comply with collections”—
encompasses the written judgment’s requirement that
defendant “abide by the financial conditions of probation
document.” We conclude that both requirements for the use
of a shorthand phrase at sentencing were satisfied. First,
it is apparent in the record that all parties had the same
understanding of the meaning of the shorthand phrase—
that defendant would comply with efforts to collect $5,776—
because defense counsel stated that defendant “is agreeing
to [pay] $5,776 in restitution” as a part of the plea deal.
And the trial court orally announced that it was waiving
any fines or fees other than the $5,776 restitution amount.
Second, the written judgment’s condition that defendant
must abide by financial conditions refers to the collection of
the restitution (the only financial condition imposed), which
is encompassed in the phrase “comply with collections.” But
cf. Priester, 

 (concluding that the trial
court’s shorthand phrase “DV package” did not make clear
that the trial court applied the special probation condition
that the defendant needed to “[d]isclose the nature of conviction to any domestic partner”). Defendant argues that the
possibility of other unspecified “conditions” contained in the
financial conditions of probation document might hypothetically result in a condition not announced in court. However,
unlike the defendant in Priester, he has not identified any
such condition to challenge, and we will not reverse a judgment based on conjecture. See 

 (concluding that the
trial court’s shorthand did not announce one of the defendant’s “specific challenged condition[s]”).
242                                             State v. Day

         Accordingly, the written judgment captured both
parties’ understanding that defendant must comply with
the collection of restitution, and the additional sentence in
the written judgment did not materially change that restitution condition.
        Affirmed.