State v. McLaughlin

• Docket Number: A176405,A176359
• Decision Date: 07 June 2023
• Parties: STATE OF OREGON, Plaintiff-Respondent, v. SEAN DAVID McLAUGHLIN, Defendant-Appellant.
• Court: Oregon Court of Appeals

1

326 Or.App. 296

STATE OF OREGON, Plaintiff-Respondent, v. SEAN DAVID McLAUGHLIN, Defendant-Appellant.

A176405, A176359

Court of Appeals of Oregon

June 7, 2023

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted May 9, 2023

Clackamas County Circuit Court 21CR10075, 20CN02979; Susie L Norby, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Morgen E. Daniels, Deputy Public Defender, Offce of Public Defense Services, fled the opening brief for appellant. Sean David McLaughlin fled the supplemental brief pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Susan G. Howe, Assistant Attorney General, fled the brief for respondent.

Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.

TOOKEY, P. J.

Defendant appeals a judgment convicting him of four counts of stalking ORS 163.732 (Case No. 21CR10075), and a judgment revoking his probation (Case No. 20CN02979), raising three assignments of error. For the reasons that follow, we remand for resentencing.

In his first assignment of error, defendant challenges his conviction in Case Number 21CR10075, arguing that the trial court erred in not allowing him to withdraw his guilty pleas in that case. That challenge is not reviewable under ORS 138.105(5), which-except in circumstances not present here-"precludes a defendant who pleads guilty * * * from obtaining appellate review of legal challenges to the conviction." State v. Colgrove, 370 Or. 474 500, 521 P.3d 456 (2022); State v. Merrill, 311 Or.App. 487, 491, 492 P.3d 722, adh'd to as modified on recons, 314 Or.App. 460, 495 P.3d 219 (2021) ("The text [of ORS 138.105] makes the legislature's intentions clear: Unless otherwise provided, we have no authority to review on appeal challenges seeking to invalidate convictions based on pleas."); see also ORS 138.105(5) ("The appellate court has no authority to review the validity of the defendant's plea of guilty[.]").

Regarding his second assignment of error, defendant argues that the trial court erred in imposing multiple special conditions of probation, because at defendant's sentencing, the court simply referenced, in shorthand, the "substance abuse package" and "domestic violence package" without explanation as to what specific conditions it was imposing, and the challenged conditions appeared for the first time in the written judgment.

Recently, in State v. Priester, 325 Or.App. 574, 582, __P.3d__(2023), we emphasized that "two things must be true before use of a shorthand phrase can legally suffice as announcing a sentencing condition in open court."^[1] First, "it must be apparent somewhere in the record that all parties had the same understanding of the meaning of the shorthand phrase and what it referred to." Id. And second, "it must be apparent somewhere in the record that the shorthand phrase included the conditions that were eventually listed in the written judgment." Id. at 582-83. The record in this case does not reflect that both conditions were met; therefore, as in Priester, we remand for resentencing. See id. at 589 (remanding for resentencing).

Because we must remand for resentencing to correct that error, we do not reach defendant's third assignment of error about the special condition of...