State v. Lewis

94                   December 26, 2024                No. 935

     This is a nonprecedential memorandum opinion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.
                   JERRY TODD LEWIS,
                    Defendant-Appellant.
                Jackson County Circuit Court
                    21CR60657; A181024

     Paul D. Moser, Judge pro tempore.
     Submitted November 8, 2024.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anna Johnson, Deputy Public Defender, Oregon
Public Defense Commission, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Lauren P. Robertson, Assistant
Attorney General, filed the brief for respondent.
     Before Lagesen, Chief Judge, and Egan, Judge.
     EGAN, J.
     Remanded for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2024)                              95

           EGAN, J.
         Defendant appeals a judgment of conviction for driving under the influence of intoxicants, (DUII), ORS 813.010(4).
The trial court sentenced defendant to two years of bench probation and imposed a sanction of 40 days in jail with credit for
time served. At the sentencing hearing, the trial court permitted defendant to report to the jail at a later date so that he
could apply for a home detention program. The judgment provides that defendant may be considered for any form of alternative sanction and that he “shall pay any required per diem
fee.” On appeal, defendant argues that the trial court erred in
imposing the requirement to pay a per diem fee because it 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, 

, 

, rev den,

 (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, 

, 

, rev den, 

 (2023) (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, 

, 236
n 2, 

 (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, 

, 597 n 1, 

 (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, 

, 

, rev den, 

 (2024) (remanding for resentencing when requirement

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

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