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State v. Miller

Court of Appeals of Oregon

September 18, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
PAULA MARIE MILLER, Defendant-Appellant.

          Submitted July 12, 2019

          Clackamas County Circuit Court CR1502018; Thomas J. Rastetter, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Mark Kimbrell, Deputy Public Defender, Offce of Public Defense Services, fled the briefs for appellant.

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

          Before Ortega, Presiding Judge, and Powers, Judge, and Landau, Senior Judge.

         Remanded for resentencing; otherwise affirmed.

         [299 Or.App. 516] PER CURIAM

         Following a jury trial, defendant was convicted of unlawful delivery of methamphetamine,ORS475.890.[1]Defendant challenges probation conditions that appeared for the first time in the judgment, including conditions prohibiting her from: (1) applying for or using a medical marijuana registry card and consuming medicinal or recreational marijuana; (2) using or possessing controlled substances; (3) frequenting places where narcotics are used, sold, or kept; and (4) possessing any narcotics paraphernalia and associating with any person known to use, sell, or possess illegal drugs or narcotics.[2] Defendant argues that those conditions are invalid because any special condition imposed relating to medical marijuana must be imposed in the same manner as probation conditions relating to prescription medication. ORS 137.540(1)(b); ORS 137.542(2). Defendant also argues that the rules of preservation do not apply.

         The state concedes that the condition prohibiting defendant's participation in the medical marijuana program is invalid under ORS 137.542(2). The state further concedes that the other conditions are invalid if defendant holds a medical marijuana card and that preservation is not required. We agree with the state that, if defendant holds a medical marijuana registry card, the conditions are invalid and that preservation is not required because the conditions appeared for the first time in the judgment. State v. Rhamy, 294 Or.App. 784, 431 P.3d 103 (2018) (concluding that the trial court erred in imposing a probation condition prohibiting the defendant from applying for or using a registry identification card pursuant to the Oregon Medical Marijuana Act (OMMA) in violation of ORS 137.542(2) and that preservation principles did not apply when the condition appeared for first time in judgments); State v. Bowden, 292 Or.App. [299 Or.App. 517] 815, 818-19, 425 P.3d 475 (2018) (concluding that a "sentencing court does not have the discretion to impose a probation condition that runs counter to ORS 137.540(1)(b) and ORS 137.542"); see also State v. Kilgore, 295 Or.App. 602, 604-05, 435 P.3d 817 (2019).[3]

         We turn to the appropriate disposition. Defendant asks that we reverse the challenged probation conditions. The state responds that, other than the condition prohibiting defendant's participation in the medical marijuana program, because the remaining conditions are invalid only if defendant is a holder of an OMMA card, we should remand for resentencing for the trial court to determine defendant's OMMA status and resentence in conformance with ORS 137.542. We agree with the state. Kilgore, 295 Or.App. at 604-05.

         Remanded for resentencing; otherwise affirmed.

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Notes:

[1] The jury found defendant guilty of possession of methamphetamine and unlawful delivery of methamphetamine, but the trial court merged the guilty verdict on possession of methamphetamine into the guilty ...


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