Submitted August 9, 2019
Washington County Circuit Court 17CR10419; Beth L. Roberts,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Mary M. Reese, Deputy Public Defender, Office of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Robert M. Wilsey, Assistant Attorney General,
fled the brief for respondent.
Lagesen, Presiding Judge, and Powers, Judge, and Kistler,
Or.App. 381]PER CURIAM.
who was 24 years old at the time, had sexual intercourse with
a 17-year-old, knowing that she was 17. For that conduct, the
trial court convicted him of one count of sexual abuse in the
second-degree, ORS 163.425, after a stipulated facts trial.
On appeal, defendant contends that the trial court erred in
four ways: (1) by denying his motion to suppress certain
statements that he made to police officers; (2) by imposing a
condition of probation requiring him to "bear financial
responsibility as directed by the supervising officer for any
counseling, therapy, treatment and medical costs incurred by
the victim(s) as a result of [his] offense"; (3) by
imposing a probation condition prohibiting him from living
within three miles of the victim; and (4) by imposing a
probation condition prohibiting him from having contact with
females between the ages of 11 and 17 without the prior
permission of his probation officer. For the reasons that
follow, we remand for resentencing.
reject without written discussion defendant's contention
that the trial court erred in denying his motion to suppress.
the probation condition ordering defendant to pay the
victim's counseling, therapy, treatment, and medical
costs as directed by his probation officer, defendant
contends that it is an unlawful delegation of the court's
sentencing authority and is invalid for that reason.
Defendant points out that the condition gives the officer the
job of determining at least part of the amount of restitution
that defendant must pay the victim, even though the
legislature placed that job-determining the amount of
restitution-squarely on the shoulders of the sentencing
court. See ORS 137.106(1) [299 Or.App.
382] (requiring sentencing court to determine amount of
restitution); State v. Davis, 57 Or.App. 322, 325,
644 P.2d 623 (1982) (sentencing court could not delegate
authority to determine amount of restitution to probation
officer); State v. Rose, 45 Or.App. 879, 883, 609
P.2d 875 (1980) (sentencing court could not delegate
authority to set amount of restitution to victim assistance
officer). The state-correctly-concedes the issue.
Accordingly, we accept the concession and remand for
resentencing. See State v. Bell, 276 Or.App. 21, 31,
366 P.3d 756 (2016) (remanding for resentencing upon
determination that a condition of probation was not
authorized). In view of this disposition, we do not reach
defendant's remaining two challenges to the other
identified conditions of probation. The challenges are not
preserved, and the sentencing court will be in a better
position to consider them in the first instance at
resentencing, at which time the record may be developed
for resentencing; otherwise affirmed.
 Defendant points out that, previously,
a different statutory provision appeared to authorize a
probation condition comparable the one at issue here. ORS
137.540(4) previously provided:
"[T]he court may order the defendant to pay to
the provider the reasonable cost of psychiatric or
psychological treatment or other counseling services provided
to the victim or victims and the victim's family
resulting from or related to the crime or crimes of which the
defendant was convicted." See, e.g., ORS
137.540(4) (1985), amended by Or Laws 1993, ch 680,
§ 16. In State v. Karussos,82 Or.App. 248,
251-52, 728 P.2d 559 (1986), we relied on that provision to
uphold a probation condition requiring a defendant to pay the
victim's counseling costs. The ...