Summary
exercising discretion to correct plainly erroneous alcohol-related conditions of probation
Summary of this case from State v. WortheyOpinion
A168355
01-15-2020
STATE of Oregon, Plaintiff-Respondent, v. Koel Douglas Alan HULLINGER, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Mary M. Reese, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Mary M. Reese, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.
PER CURIAM Defendant was convicted of unlawful use of a motor vehicle, ORS 164.135, and menacing, ORS 163.190. On appeal, he challenges the trial court’s imposition of several special conditions of probation in four assignments of error: that he not use or possess alcoholic beverages, that he not enter establishments serving alcohol except for employment and meals, that he live with his mother and follow house rules imposed by his mother, and that he complete schooling for and obtain a General Equivalency Diploma. Defendant did not preserve the asserted errors as to the latter two conditions, but he argues that those errors are plain and that we should exercise our discretion to correct them. The state concedes that the two alcohol-related special conditions of probation were erroneously imposed and that the case should be remanded. See State v. Borders , 293 Or. App. 791, 429 P.3d 1067 (2018) (court erred in imposing alcohol-related conditions of probation for offense that were not reasonably related to crime of conviction). We agree with the parties that the two alcohol-related conditions of probation were unauthorized and were imposed in error, accept the state’s concession regarding the first and second assignments of error, and remand for resentencing. Given our disposition of the first two assignments of error, we need not reach defendant’s third and fourth assignments.
Remanded for resentencing; otherwise affirmed.