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State v. Jerscheid

Court of Appeals of Oregon

October 31, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
JASON TRAVIS JERSCHEID, Defendant-Appellant.

          Submitted September 7, 2018

          Douglas County Circuit Court 15CR07691; William A. Marshall, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erik Blumenthal, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary: Defendant appeals a judgment of conviction for unlawful possession of four or more ounces of marijuana and felon in possession of a fire-arm (FIP), challenging the trial court's imposition of special probation conditions on his FIP conviction that restrict his ability to participate in the Oregon Medical Marijuana Program (OMMP). Defendant contends-and the state concedes- that those conditions violate ORS 137.542. Held: ORS 137.542 applies whenever a person holding a registry identification card for the OMMP is sentenced to probation; it is not limited to probation sentences for marijuana-related offenses. The trial court erred in concluding otherwise.

         Remanded for resentencing; otherwise affirmed.

         [294 Or.App. 565] ARMSTRONG, P. J.

         Defendant appeals a judgment of conviction, based on his guilty plea, for unlawful possession of four or more ounces of marijuana, former ORS 475.864 (2013), repealed by Or Laws 2017, ch 21, § 126, and felon in possession of a firearm (FIP), ORS 166.270.[1] On appeal, defendant contends that the trial court erred in imposing special probation conditions restricting defendant's ability to participate in the Oregon Medical Marijuana Program (OMMP), contrary to ORS 137.542. The state concedes the error. As explained below, we agree, accept the state's concession, and remand for resentencing.

         With respect to defendant's conviction for FIP, the trial court imposed a sentence of probation, which included special conditions of probation that generally prohibit defendant from possessing a medical marijuana registry card or participating in OMMP. Specifically, the special conditions provide that defendant

"[s]hall not hold, possess or apply for a registry identification card for the Oregon Medical Marijuana Program and shall not possess or use marijuana for any purpose without the express written permission of the probation officer and a further order of the court. Shall immediately surrender to the probation officer any Oregon registry identification card currently possessed. If any request is made to the court to approve the medical use of marijuana, the written request must be substantiated by medical records made by the attending physician stating the physician has diagnosed this person with a debilitating medical condition as defined by the Oregon Medical Marijuana Act and the medical use of the marijuana may mitigate the symptoms or effects of the condition."

         Defendant contends that the conditions were imposed in violation of ORS 137.542, which was enacted a few weeks before defendant's sentencing. See Or Laws 2016, ch 24, §§ 51, 82. Subsection (2) of that statute provides:

"Notwithstanding ORS 137.540, the conditions of supervision of a person who holds a registry identification card and is sentenced to probation related to the use of usable [294 Or.App. 566] marijuana, medical cannabinoid products, cannabinoid concentrates or cannabinoid extracts must be imposed in the same manner as the conditions of supervision of a person sentenced to probation related to prescription drugs."

ORS 137.542(2). The trial court understood the statute to apply only when a court is imposing probation conditions for an offense related to the use of marijuana, and, here, the special conditions at issue were imposed, not on a marijuana-related offense, but on defendant's FIP ...


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