State v. Lane

634                 December 11, 2024              No. 883

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
           BAILEY ROBERT FRANCIS LANE,
                 Defendant-Appellant.
               Lane County Circuit Court
                 23CR29877; A182116

  Karrie K. McIntyre, Judge.
  Submitted October 22, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Bruce A. Myers, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
  EGAN, J.
  Affirmed.
Cite as 

 (2024)                                635

        EGAN, J.
         Defendant appeals a judgment of conviction for
menacing constituting domestic violence, ORS 163.190, and
harassment constituting domestic violence, ORS 166.065.
The judgment of conviction contains probation conditions
that prohibit defendant from possessing firearms or ammunition under ORS 166.255, which provides, in part, that “[i]t
is unlawful for a person to knowingly possess a firearm or
ammunition if … [t]he person has been convicted of a qualifying misdemeanor[.]” For purposes of that prohibition, a
“qualifying misdemeanor” is one that “has, as an element
of the offense, the use or attempted use of physical force.”
ORS 166.255(3)(e). In two assignments of error, defendant
contends that the trial court plainly erred in imposing the
firearm prohibition because neither harassment nor menacing is a qualifying misdemeanor under ORS 166.255.
         Since this case was briefed and submitted, the
Supreme Court decided State v. Eggers, 

, 

 (2024), holding that the crime of harassment, which
involves subjecting another person to offensive physical contact, ORS 166.065(1)(a)(A), is a qualifying misdemeanor
under the firearm prohibition. Accordingly, the trial court
did not err in prohibiting defendant from possessing firearms or ammunition because of his harassment conviction.
         As for the crime of menacing, a person commits
that crime if, “by word or conduct the person intentionally
attempts to place another person in fear of imminent serious physical injury.” ORS 163.190(1). We need not decide
whether the trial court plainly erred in prohibiting defendant from possessing firearms or ammunition for menacing
because we decline to exercise our discretion to correct any
plain error. See State v. Wiltse, 

, ___ P3d ___
(2024) (explaining that even if there is a plain error, whether
we will correct the error involves an exercise of discretion).
        In State v. Fults, 

, 

 (2007),
the factors the Supreme Court considered in deciding that
an exercise of discretion was not appropriate included:
   “(1) defendant’s apparent encouragement of the judge’s
   choice; (2) the role of the concurrent, permissible 36-month
636                                                State v. Lane

   probationary sentence; (3) the possibility that defendant
   made a strategic choice not to object to the sentence; and
   (4) the interest of the judicial system in avoiding unnecessary repetitive sentencing proceedings, as well as its interest in requiring preservation of error.”
Many of those factors are applicable here. Defendant was
initially charged with the more serious offense of felony
strangulation, but he pleaded guilty to the misdemeanor
offenses of menacing and harassment. The parties proposed a “jointly recommended sentence” that included the
firearm prohibition “to the extent applicable,” and it is now
clear that the firearm prohibition applies to defendant’s conviction for harassment. At the plea hearing, the trial court
asked whether “it is contemplated that this is a crime that
qualifies under the firearm ammunition surrender,” the
prosecutor responded, “[t]hat’s part of the negotiation,” and
defendant did not object. Because defendant encouraged the
judge’s choice, was involved in negotiating the plea deal, and
likely made a strategic choice not to object to the sentence,
those factors weigh against exercising our discretion to correct any error. See State v. Nolasco-Lara, 

, 

, rev den, 

 (2012) (declining to
exercise our discretion to correct plain error in sentencing
for similar reasons).
         Furthermore, in defendant’s judgment of conviction, the trial court imposed the firearm prohibition for both
menacing and harassment. Under Eggers, 

,
it was not an error to do so for harassment. As a result,
remanding the case for resentencing and requiring the trial
court to amend the judgment to omit the firearm prohibition for menacing would have “no real, practical effect” on
defendant. Fults, 

. Admittedly, the burden
on the judicial system in requiring the trial court to make
that change would be minimal, but it is unnecessary where
defendant remains subject to the same firearm prohibition
based on his conviction for harassment. For each of those
reasons, we decline to exercise our discretion to correct the
trial court’s plain error, if any.
         Affirmed.