State v. Hullinger

456 P.3d 383, 301 Or. App. 746

• Court: Court of Appeals of Oregon
• Decided: January 15, 2020
• Docket: A168355
• Status: Published

Opinion

Submitted December 6, 2019; remanded for resentencing, otherwise affirmed January 15, 2020

STATE OF OREGON, Plaintiff-Respondent, v. KOEL DOUGLAS ALAN HULLINGER, Defendant-Appellant. Lincoln County Circuit Court 18CR28845; A168355 456 P3d 383

Paulette E. Sanders, Judge. 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 Remanded for resentencing; otherwise affirmed. Cite as 301 Or App 746 (2020) 747

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 condi- tions, 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 P3d 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 defen- dant’s third and fourth assignments. Remanded for resentencing; otherwise affirmed.