State v. Hahn

288                   January 2, 2025                 No. 14

   This is a nonprecedential memorandum opinion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.
              ISAIAH JOHNNIE HAHN,
                  Defendant-Appellant.
               Linn County Circuit Court
   21CR26277, 21CR20822; A180951 (Control), A180954

   Brendan J. Kane, Judge.
   Submitted October 23, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, 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 Shorr, Presiding Judge, Powers, Judge, and Pagán,
Judge.
   SHORR, P. J.
   Judgments vacated and remanded.
Nonprecedential Memo Op: 

 (2025)           289

        SHORR, P. J.
         In these consolidated criminal cases, defendant
appeals two amended judgments that amended his original
sentences. The original judgments were entered as part of a
plea agreement and stipulated sentences involving three cases:
Case No. 21CR20822 (the burglary case), in which defendant
pleaded no contest and was convicted of first-degree burglary
and two misdemeanor offenses and another misdemeanor
offense was dismissed; Case No. 21CR26277 (the assault case)
in which the state reduced a second-degree assault charge to
third-degree assault, to which defendant pleaded guilty; and
Case No. 21CR17790, which is not before us in this appeal.
More than a year after the original sentencing, defendant
moved the trial court under ORS 137.172 to correct the sentence in the assault case. Defendant contended that the sentence in the assault case was erroneous because it exceeded
the statutory maximum sentence for third-degree assault.
         The trial court held a hearing and entered an
amended judgment changing the sentences in both the
assault case and, on its own motion, the burglary case.
Defendant was not present for that hearing, but his
appointed counsel was present on his behalf. Defendant
had, however, stated in his motion that he was proceeding
pro se and requested oral argument. The trial court did
not address that issue at the hearing. After the hearing,
defendant sent a letter to the court indicating that he did
not want his appointed counsel to represent him. The state
concedes that the trial court erred by holding a sentencing
hearing outside defendant’s presence and by not addressing defendant’s written request to represent himself in the
proceeding. Accepting the state’s concession, we vacate the
amended judgments and remand. Our discussion below primarily concerns the parties’ dispute over whether or how to
direct the trial court in proceeding on remand.
         The underlying plea agreement, which encompassed
three cases that were all sentenced together, was negotiated
with one of the goals being to keep defendant “out of Measure
11.” The state reduced the assault charge to third-degree
assault and dismissed a misdemeanor charge. Defendant,
for his part, stipulated to a higher grid block, a durational
290                                            State v. Hahn

departure, and ultimately an 80-month prison sentence. As
part of the original sentencing and judgments, the court
imposed the 80-month stipulated sentence on the assault
charge. All other sentences were imposed concurrent with
that sentence. Because defendant stipulated to the sentence,
it would have been outside of the scope of our review, had he
timely challenged it on appeal. ORS 138.105(9). In addition,
when a conviction that is part of a sentencing package—i.e.,
where multiple convictions are sentenced together—must
be resentenced, we would remand the entire case for the
sentencing court to resentence the defendant on any of the
convictions that it sentenced in the first instance. See ORS
138.257(4); see also, e.g., State v. Zolotoff, 

, 

 (2015) (“[W]hen an appellate court’s decision affects part of a felony sentencing package—even by
doing nothing more than requiring merger of two guilty
verdicts—resentencing on all convictions that form part of
that package is required on remand.” (Emphasis in original.)).
          When the trial court addressed defendant’s motion
to correct the sentence in the assault case, it reduced that
sentence from 80 months to 27 months in prison. On its
own motion, it then entered an amended judgment in the
burglary case to give effect to the parties’ stipulated sentence for the entire three-case plea agreement, which was
for defendant to serve 80 months in prison, with the possibility of sentence reduction programs such as earned time
and good time. The court reduced the 55-month sentence on
the burglary charge to 53 months and made that sentence
consecutive to the assault sentence rather than concurrent.
         Defendant argues on appeal that the amended
judgment in the assault case, in which his term of imprisonment was reduced to 27 months, should be reversed and
remanded for a new hearing under ORS 137.172. He also
argues that there was no erroneous term in the burglary
judgment, so the trial court was without authority to amend
that judgment. He contends that we should reverse that
amended judgment and remand for the court to reinstate
the original judgment in that case.
        The state concedes that the trial court erred by
holding the hearing outside defendant’s presence, and as a
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 (2025)           291

result, failing to address defendant’s request to represent
himself. The state also agrees that the amended judgments
should be reversed. It takes issue, however, with defendant’s
proposed disposition. The state asks that we reverse and
remand without instructing the trial court that it must both
hold a hearing on the motion to modify the judgment in the
assault case and reinstate the original burglary judgment.
We agree with the state.
         When it chose to hold a hearing in which it granted
defendant’s ORS 137.172 motion to “correct” the sentence in
the assault case, the trial court erred by holding that hearing in defendant’s absence. It further erred by not considering defendant’s request to represent himself. Those errors
require us to vacate and remand both of the amended judgments. Because there is more than one way that the trial
court may proceed on remand, we decline to further instruct
the court.
        Judgments vacated and remanded.