337 ORAPP 579 - State v. Plano

No. 64              January 29, 2025                  579

   This is a nonprecedential memorandum opinion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.
             GREGORY WARREN PLANO,
                 Defendant-Appellant.
             Malheur County Circuit Court
                22CR60124; A183072

  Lung S. Hung, Judge.
  Submitted December 13, 2024.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel C. Silberman, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Leigh A. Salmon, Assistant Attorney
General, filed the brief for respondent.
  Before Lagesen, Chief Judge, and Egan, Judge.
  EGAN, J.
  Remanded for resentencing; otherwise affirmed.
580                                                         State v. Plano

           EGAN, J.
        Defendant pleaded guilty to second-degree theft,
ORS 164.045. The trial court sentenced defendant to 45
days in jail. The judgment provides that defendant may
be considered for alternative sanctions and that defendant
shall pay any required per diem fees, but that requirement
to pay per diem fees was not announced in open court at
sentencing. The state concedes the error. We agree with and
accept the state’s concession. We remand for resentencing
and otherwise affirm.1
         “We review sentencing decisions for legal error.”
State v. Tison,

292 Or App 369, 372

424 P3d 823

, rev den,

363 Or 744

 (2018). “A criminal defendant has the right to
have their sentence announced in open court. A trial court
commits reversible error if it does not do so, and the result
is usually a resentencing.” State v. Priester,

325 Or App 574, 581

530 P3d 118

, rev den,

371 Or 332

 (2023) (internal citations omitted). “[A] defendant is not required to preserve a
challenge to a portion of a sentence that appeared for the
first time in a judgment because the defendant had no
opportunity to preserve the challenge at a hearing where
that sentence was never announced.” State v. Macy,

312 Or App 234

, 236 n 2,

492 P3d 1277

 (2021).
         Here, defendant was convicted of a misdemeanor
offense, so his challenge is based on his constitutional right
to be present at sentencing. See State v. Dennis,

303 Or App 595

, 597 n 1,

464 P3d 518

 (2020). The trial court erred in
imposing the requirement to pay a per diem fee in the judgment because it was not announced at sentencing, and the
appropriate remedy is a remand for resentencing. See State
v. Barr,

331 Or App 242, 244

545 P3d 772

, rev den,

372 Or 720

 (2024) (remanding for resentencing when requirement
to pay per diem fees in the judgment was not announced in
open court at sentencing).
           Remanded for resentencing; otherwise affirmed.



   1
     As authorized by ORS 2.570(2)(b), this matter is determined by a two-judge
panel.