State v. Sharp

No. 823               November 14, 2024                     235

   This is a nonprecedential memorandum opinion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.
                 JAMES RICHARD SHARP,
                    aka James R. Sharp,
                    Defendant-Appellant.
                  Coos County Circuit Court
                    22CR51057; A180874

   Martin E. Stone, Judge.
   Submitted September 25, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Timothy C. Downin, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patricia G. Rincon, Assistant Attorney
General, filed the brief for respondent.
  Before Shorr, Presiding Judge, Powers, Judge, and
Pagán, Judge.
   POWERS, J.
   Remanded for resentencing; otherwise affirmed.
236                                             State v. Sharp

        POWERS, J.
         Defendant was found guilty of fleeing or attempting to elude a police officer under ORS 811.540(1)(b)(A),
was sentenced to 18 months of supervised probation, and
was ordered to “pay any required per diem fees.” Defendant
appeals the judgment of conviction and advances two assignments of error. First, he argues that the court plainly erred
when instructing the jury regarding the “attempts to elude”
element of ORS 811.540(1). Second, he contends that the
trial court erred by ordering him to pay per diem fees. We
reject defendant’s claim of instructional error, but we accept
the state’s concession of error regarding the per diem fees
and remand for resentencing.
          Instructional Error. In his first assignment of error,
defendant argues that the trial court plainly erred by giving the jury the uniform criminal jury instruction (UCrJI)
on “attempt” that is used for inchoate crimes, UCrJI 1040,
rather than instructing on the ordinary meaning of the word
“attempt.” Defendant, however, was the one who requested
that instruction, thereby inviting the error. Thus, we reject
his first assignment on that ground. See, e.g., Dept of Human
Services v. M. A. T., 

, 302, ___ P3d ___ (2024)
(describing the “invited error” doctrine and explaining that
“a party on appeal cannot take a position inconsistent with
the position that party invited the trial court to take”);
State v. Swartz, 

, 602 n 1, 

 (2017)
(concluding that, because the “defendant requested UCrJI
1227A, any error that the trial court made by giving the
instruction constitutes invited error” (internal quotation
marks omitted)).
         Per Diem Fees. In his second assignment, defendant
contends that the trial court erred by including a term in
the judgment that “the defendant shall pay any required
per diem fees” without having first announced that term
at the sentencing hearing. The state concedes that, in light
of our decision in State v. Barr, 

,

, rev den, 

 (2024), the court erred
by imposing the previously unannounced term in the judgment and that the case must be remanded for resentencing because the error is not harmless. We agree, accept the
Nonprecedential Memo Op: 

 (2024)       237

state’s concession, and remand for resentencing as we did
for the same error in Barr.
       Remanded for resentencing; otherwise affirmed.