State v. Glover

Opinion

No. 786 August 19, 2026 349

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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.

MICHAEL EDWIN GLOVER,

Defendant-Appellant.

Clatsop County Circuit Court 21CR49487, 22CR19967, 23CR17873, 23CR19556, 24CR40543; A185614 (Control), A185615, A185616, A185617, A185618

Beau V. Peterson, Judge. (Judgments filed September 13, 2024 Submitted on July 29, 2026. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and James Brewer, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant.

Dan Rayfield, Attorney General, Paul L. Smith, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.

Before Aoyagi, Presiding Judge, Egan, Judge, and Pagán, Judge.

AOYAGI, P. J. Remanded for resentencing in Case Nos. 23CR19556 and 24CR40543; otherwise affirmed.

350 State v. Glover

AOYAGI, P. J. In this consolidated criminal appeal, defendant ’s probation was revoked in four cases—case numbers 21CR49487, 22CR19967, 23CR17873, and 23CR19556— based on his pleading guilty and being convicted of a new crime in case number 24CR40543. Defendant raises three assignments of error. He contends that the sentencing court erred by (1) holding a sentencing proceeding at which defendant appeared remotely, without defendant’s consent to doing so; (2) imposing unannounced per diem fees as part of the sentence in case number 24CR40543; and (3) imposing a sentence in excess of the statutory maximum in case number 23CR19556. The state disputes the first claim of error but concedes the second and third. For the reasons explained below, we remand for resentencing in cases 23CR19556 and 24CR40543 and otherwise affirm.

Remote appearance. ORS 131.045(2) provides that, when a person is statutorily authorized or required to personally appear in court in a criminal proceeding, the person may appear “by simultaneous electronic transmission” if certain conditions are met, including that “the parties in the proceeding and the court agree” to it. Defendant appeared by video at the hearing on September 13, 2024. At that hearing, he changed his plea in case number 24CR40543, his probation was revoked in the other four cases, and he was sentenced. Although his assignment of error refers to a “sentencing proceeding,” he appears to challenge the revocation of his probation, not only sentencing. The state makes various arguments against the first assignment of error, including mootness and unreviewability. Ultimately, we need address only one, as it is dispositive.

Defendant did not object to his remote appearance on September 13, 2024, so only plain-error review would be available in the event that we got past the procedural impediments argued by the state.1 See State v. Wyatt, 331 Or 335, 341, 15 P3d 22 (2000) (“Generally, an issue not preserved in the trial court will not be considered on appeal.”);

1 We have considered—and we reject—defendant’s preservation argument as to the first assignment of error. Defendant has requested plain error review in the alternative.

Nonprecedential Memo Op: 352 Or App 349 (2026) 351

ORAP 5.45(1) (we have discretion to correct “plain” errors despite lack of preservation). An error is “plain” when it is an error of law, is obvious and not reasonably in dispute, and is apparent on the record without our having to choose among competing inferences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). Whether an error is “plain” is a question of law. State v. Gornick, 340 Or 160, 167, 130 P3d 780 (2006). Here, the record is entirely silent as to whether defendant agreed to appear by video, so any error cannot be said to be apparent on the record, and it follows that any error is not plain. We therefore reject the first assignment of error.

Excess sentence. In case number 23CR19556, upon the revocation of his probation, defendant was sentenced to 31 months in prison and 36 months of post-prison supervision (PPS). Defendant did not object. He now contends that the trial court plainly erred by imposing a sentence in excess of the statutory maximum, and he urges us to exercise our discretion to correct the plain error. In short, defendant was convicted of public indecency as a Class C felony, ORS 163.465(2), for which the maximum indeterminate sentence is 60 months, ORS 161.605(3), yet the sentencing court imposed a 67-month sentence (consisting of 31 months in prison and 36 months of PPS), thus violating OAR 213-005-0002(4). The state concedes the error and acknowledges that it is appropriate that we exercise our discretion to correct it, as we did in similar circumstances in State v. Buck, 338 Or App 314, 331-32, 566 P3d 682, rev den, 374 Or 143 (2025).

Whether a sentence exceeds the statutory maximum is a question of law, State v. Wierson, 216 Or App 318, 319, 172 P3d 281 (2007), and we agree that the trial court plainly erred in this instance and that it is appropriate to exercise our discretion for reasons similar to those in Buck. Accordingly, we remand for resentencing in case number 23CR19556.

Per diem fees. In case number 24CR40543, the sentencing court included in its judgment a term that was not announced at sentencing—that defendant “shall pay any required per diem fees.” That was error, as the state concedes . See State v. Barr, 331 Or App 242, 244-45, 545 P3d 772, rev den, 372 Or 720 (2024) (holding same in similar 352 State v. Glover

circumstances). Accordingly, we remand for resentencing in case number 24CR40543.

Remanded for resentencing in Case Nos. 23CR19556 and 24CR40543; otherwise affirmed.