State v. Weatherly

• Court: Court of Appeals of Oregon
• Decided: May 6, 2026
• Docket: A185021
• Status: Unpublished

Opinion

No. 367 May 6, 2026 301

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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. JAMES KIRK WEATHERLY, Defendant-Appellant. Linn County Circuit Court 23CR09705; A185021

Rachel Kittson-MaQatish, Judge. Submitted December 12, 2025. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Rond Chananudech, Deputy Public Defender, Oregon Public Defense Commission, filed the briefs for appellant. Dan Rayfield, Attorney General, Paul L. Smith, Solicitor General, and Colm Moore, Assistant Attorney General, filed the brief for respondent. Before Lagesen, Chief Judge, and Egan, Judge.* LAGESEN, C. J. Reversed and remanded for entry of an amended judg- ment; otherwise affirmed.

______________ * Determined by a two-judge department as authorized by ORS 2.570(2)(b). 302 State v. Weatherly

LAGESEN, C. J. Defendant appeals a conviction for unlawful manu- facture of marijuana, entered after a guilty plea. He was sen- tenced to a 9-month term of incarceration with 24 months of post-prison supervision, and a fine. Appointed counsel filed a brief pursuant to ORAP 5.90 and State v. Balfour, 311 Or 434, 814 P2d 1069 (1991). The brief did not contain a Section B. See ORAP 5.90(1)(b). We remand for entry of an amended judgment and otherwise affirm. We requested supplemental briefing from the par- ties pursuant to ORAP 5.90(3) after identifying the argu- ably meritorious issue of whether the court erred by includ- ing for the first time in the judgment a provision stating that “[t]he court may increase the total amount owed by adding collection fees and other assessments. These fees and assess- ments may be added without further notice to the defendant and without further court order.” When we identify an arguably meritorious issue, the responsibility for presenting that issue and arguing any others shifts back to counsel. See ORAP 5.90(3); State v. Dempsey, 340 Or App 156, 167, 570 P3d 646, 652 (2025) (directing counsel to file a supplemental opening brief in accordance with ORAP 5.90(3)). At that point, “[o]ur obli- gations under the Due Process Clause, as implemented by Balfour, ORAP 5.90, and Anders [v. California, 386 US 738, 87 S Ct 1396, 18 L Ed 2d 493 (1967)] are fully discharged. Our role at that point is to treat the case like any other appeal.” State v. Campbell, 344 Or App 463, 465, 580 P3d 914 (2025). The parties have submitted supplemental briefs addressing that issue. Defendant argues that the trial court erred by including the provision allowing “other assess- ments” to be added to his debt, and the state now concedes that it was error to include that language in the judgment under State v. Martinez, 347 Or App 273, ___ P3d ___ (2026) (trial court lacked statutory authority to impose “other assessments” for the first time in the judgment). The par- ties no longer dispute that the trial court erred, and that the appropriate resolution is the deletion of the challenged Nonprecedential Memo Op: 349 Or App 301 (2026) 303

terms. We accept the concession of error, reverse the portion of the judgment related to adding assessments to the total amount owed by defendant, and remand to the trial court for entry of a judgment deleting the terms “and other assess- ments” and “and assessments” from the judgment. Reversed and remanded for entry of an amended judgment; otherwise affirmed.