730 December 17, 2025 No. 1086
This is a nonprecedential memorandum opinion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.
JACOB RILEY BURRELL,
Defendant-Appellant.
Lane County Circuit Court
23CR00274; A181125
Stephen W. Morgan, Judge.
Submitted January 21, 2025.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Brett J. Allin, Deputy Public Defender, Oregon
Public Defense Commission, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin
Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant
Attorney General, filed the brief for respondent.
Before Ortega, Presiding Judge, Hellman, Judge, and
O’Connor, Judge.*
ORTEGA, P. J.
Remanded for resentencing.
______________
* O’Connor, Judge, vice Mooney, Senior Judge.
Nonprecedential Memo Op:
345 Or App 730
(2025) 731
ORTEGA, P. J.
Defendant appeals from a judgment of conviction for
felony strangulation constituting domestic violence (Count
1), fourth-degree assault constituting domestic violence
(Count 2), and interfering with making a report (Count 3).
As relevant to this appeal, on Counts 2 and 3, the trial court
imposed 36 months of supervised probation with general
and special conditions. On appeal, defendant challenges the
imposition of two special probation conditions. The state concedes that the trial court erred in imposing the two written
special conditions because they are more restrictive than
the ones announced at sentencing. The state asserts that
we should remand for resentencing, but defendant argues
that we should reverse the conditions without a remand
for resentencing. We accept the state’s concession as well
taken and further conclude that the correct disposition is
to remand for resentencing. At resentencing, defendant will
have an opportunity to raise arguments about the propriety
of the special probation conditions.
In this case, with respect to the special conditions
of probation on Counts 2 and 3, the court stated, in addition
to imposing jail time:
“That all domestic violence conditions of supervision would
apply. That is to include that you engage in a case plan with
them, that to include domestic violence treatment and that
you complete any polygraphs that are reasonably requested
by the Probation Officer, that you comply with any geographic electronic surveillance or curfews that are reasonably requested by the Probation Officer, that you have no
contact with the named victim without written permission
of the Probation Officer.
“…
“No dangerous or deadly weapons. Not to engage in sexually intimate or romantically intimate relationships without the prior written permission of the Probation Officer,
and I think those are all the conditions of the standard
domestic violence conditions of probation.”
Defendant did not object to those conditions. The trial court
included special conditions of probation for Counts 2 and 3
in the written judgment.
732 State v. Burrell
On appeal, defendant challenges two of the special probation conditions in the judgment: Defendant shall
“[p]articipate in random polygraph examinations to obtain
information for risk management and treatment at the direction of the probation officer. The probationer is responsible
for paying the expenses of the examinations”; and defendant shall “[c]omply with Curfew/Electronic Supervision
Program/Geographic restrictions at the direction of the
probation officer.” Defendant argues that we should reverse
those conditions because they are more restrictive than and
add terms to the conditions announced in open court and
because the court plainly erred because those conditions are
not reasonably related to defendant’s criminal conduct and
needs.
The state concedes that the two written special probation conditions differ from the court’s oral pronouncement
and that the conditions are erroneous to the extent that they
differ. The state also argues that the correct disposition is to
remand for a new sentencing hearing.
We accept the state’s concession as well taken. We
further agree with the state that the correct disposition is
for a new sentencing hearing. We disagree with defendant
that the difference between the announced conditions and
the written conditions are merely clerical errors that court
should fix without a resentencing.
We also reject defendant’s argument that the two
special conditions should be reversed without a remand for
resentencing, which is premised on defendant’s argument
that the court plainly erred in imposing any special conditions for polygraph examinations or curfew and geographic
limitations because they were not reasonably related to
defendant’s crimes or needs. See ORS 137.540(2) (permitting
a court to impose special conditions of probation “that are
reasonably related to the crime of conviction or the needs of
the probationer for the protection of the public or reformation
of the probationer, or both”). Defendant’s argument requires
us to determine whether to review the trial court’s imposition of the conditions as plain error. A plain error must be
an error of law; obvious, and not reasonably in dispute; and
it must appear on the face of the record. Ailes v. Portland
Nonprecedential Memo Op:
Here, even if the trial court plainly erred, we would
not exercise our discretion to correct the error. Based on the
court’s error in imposing special conditions that are more
restrictive than those announced in open court, this case
must be remanded for resentencing. With a remand for
resentencing, defendant will have an opportunity to present
his argument to the trial court that the polygraph condition
and the curfew and geographic restriction condition cannot
be imposed on him. That, in turn, will give the trial court
an opportunity to consider and address that issue in the
first instance. Defendant has not persuaded us that it would
be appropriate for us to instead correct the issue in a plain
error posture.
Remanded for resentencing.
