text:
    STATE of Oregon, Plaintiff-Respondent, v. Jason Paul BROYLES, aka Jason Broyels, aka Jason Broyles, Defendant-Appellant.
    A165275
    Court of Appeals of Oregon.
    Argued and submitted January 17, 2019. February 27, 2019
    Kyle Krohn, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    Philip Michael Thornnes argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Susan G. Howe, Assistant Attorney General.
    Before Powers, Presiding Judge, and Egan, Chief Judge, and James, Judge.
   PER CURIAM

Defendant pleaded guilty to misdemeanor driving under the influence of intoxicants (DUII), ORS 813.010(4), and felony unlawful possession of methamphetamine, ORS 475.894. On appeal, defendant argues that the trial court erred when, in the judgment, it imposed a DUII fine in an amount that exceeded the amount that it had ordered in open court. That is, at the sentencing hearing, the trial court stated that it was ordering defendant to pay a $2,000 fine on the DUII conviction, but the judgment ordered defendant to pay a $2,555 fine on that conviction. The state concedes the error, and we accept the state's concession. See State v. Tison , 292 Or. App. 369 371, 424 P.3d 823 (2018), rev. den. , 363 Or. 744, 430 P.3d 567 (2018) (accepting state's concession that trial court erred after entering a judgment imposing a fine that was greater than amount trial court ordered defendant to pay orally at sentencing hearing). Accordingly, we remand the case to the trial court for resentencing. See id. at 371, 373, 424 P.3d 823 (remanding case for resentencing and rejecting defendant's argument that the proper disposition was to reverse and remand for entry of a corrected judgment).

Because the judgment in this case involves both a felony and misdemeanor, former ORS 138.222 (2017) governs this appeal. State v. Febuary , 361 Or. 544, 552-53, 396 P.3d 894 (2017). Therefore, we must remand the entire case for resentencing. See State v. Hannah , 284 Or. App. 662, 663, 393 P.3d 1198 (2017), rev. den. , 361 Or. 886, 403 P.3d 764 (2017) (rejecting argument that proper disposition under former ORS 138.222 (5)(a) was to remand and correct the judgment). Defendant raises an additional assignment of error, also related to his sentencing, but our disposition obviates the need for us to address it.

Reversed and remanded for resentencing.

      Former ORS 138.222 (2017) was repealed in 2017 by Senate Bill (SB) 896. Or. Laws 2017, ch. 529, § 26. Because the judgment in this case was entered before the January 1, 2018, effective date of SB 896, its provisions do not apply. Or. Laws 2017, ch. 529, § 28 (providing that SB 896 applies "on appeal from a judgment or order entered by the trial court on or after the effective date of this 2017 Act").


source: Caselaw Access Project

author: HADLOCK, P. J.

license: Public Domain

text:
    In the MATTER OF A. E., a Child.
    Department of Human Services, Petitioner-Respondent, and A. E., Respondent, v. G. P. B., Appellant.
    In the Matter of N. E., a Child.
    Department of Human Services, Petitioner-Respondent, and N. E., Respondent, v. G. P. B., Appellant.
    In the Matter of A. E., a Child.
    Department of Human Services, Petitioner-Respondent, and A. E., Respondent, v. G. P. B., aka G. P. B., Appellant.
    In the Matter of N. E., a Child.
    Department of Human Services, Petitioner-Respondent, and N. E., Respondent, v. G. P. B., aka G. P. B., Appellant.
    A168589 (Control) A168590 A168591 A168592
    Court of Appeals of Oregon.
    Argued and submitted January 29, 2019. March 6, 2019
    Tiffany Keast, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Shannon Storey, Chief Defender, Juvenile Appellate Section, Office of Public Defense Services.
    Colm Moore, Assistant Attorney General, argued the cause for respondent Department of Human Services. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
    Christa Obold Eshleman argued the cause for respondent children. On the brief was Adrian T. Smith.
    Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.
   HADLOCK, P. J.

Mother appeals permanency judgments in which the juvenile court changed the permanency plans for her two children, A and N, from reunification to adoption. In her first four assignments of error, mother raises unpreserved arguments that relate to the juvenile court's decision to take judicial notice of certain documents. We reject those assignments of error without further discussion. In her fifth through eighth assignments of error, mother challenges the merits of the juvenile court's decision to change the permanency plans to adoption, arguing that the court erred in ruling that no "compelling reason" existed to forgo implementing that plan. After mother filed her opening brief, the Supreme Court issued its decision in Dept. of Human Services v. S. J. M. , 364 Or. 37, 56, 430 P.3d 1021 (2018), in which it held that a party opposing a change of permanency plan to adoption (here, mother) has the burden of proving the presence of a compelling reason to forgo that plan change. In a reply brief, mother argues that we should remand this case to the juvenile court in light of S. J. M. to give her an opportunity to meet that burden. For the reasons set out below, we reject mother's arguments and, therefore, affirm.

As we explain today in Dept. of Human Services v. S. J. K. , 296 Or. App. 416, 439 P.3d 578 (2019), the Supreme Court held in S. J. M. that the proponent of changing a permanency plan to adoption "need prove only that [the Department of Human Services (DHS) ] made reasonable efforts to reunify the family, but that the parents had made insufficient progress to permit reunification." S. J. K. , 296 Or. App. at 418-19, 439 P.3d 578 ; see ORS 419B.476(2)(a) (at a permanency hearing, the juvenile court shall determine whether DHS has made "reasonable efforts *** to make it possible for the ward to safely return home and whether the parent has made sufficient progress to make it possible for the ward to safely return home"). If those matters are proved, then, to avoid the change of plan, "the opposing party bears the burden of proving the presence of a compelling reason under ORS 419B.498(2) to forgo a plan change." S. J. K. , 296 Or. App. at 418-19, 439 P.3d 578 (emphasis added). That latter aspect of the Supreme Court's decision in S. J. M. marked a change in the law that we had previously applied; prior to S. J. M. , we had repeatedly held that the proponent of the plan change had the burden to prove the absence of a compelling reason to forgo that change. S. J. K. , 296 Or. App. at 418, 439 P.3d 578 ; see S. J. M. , 364 Or. at 50 & n. 5, 430 P.3d 1021 (discussing this court's cases).

The permanency hearing in this case occurred at a time when we had held that DHS had the burden to prove the absence of a "compelling reason." As noted, mother argued in her fifth through eighth assignments of error on appeal-before the Supreme Court issued its decision in S. J. M. -that DHS had not met that burden and, for that reason, the juvenile court erred in changing the permanency plans to adoption. She based that argument on a contention that DHS did not prove that she was not successfully participating in services that would make it possible for the children to return home in a reasonable time. As mother implicitly recognizes in her reply brief, that argument is no longer viable in light of S. J. M. However, she asks, like the appellant did in S. J. K. , that we remand this case to the juvenile court to give her an opportunity to meet the newly announced burden of proof.

As stated in S. J. K. , we recognize that there may be instances in which a "significant change in the law may *** counsel in favor of a remand in order to ensure that a party has a fair opportunity to litigate a case under the correct legal standards." 296 Or. App. at 420, 439 P.3d 578. However, this case does not present such an instance. Our review of the record reveals little reason to believe that mother could persuade a juvenile court that she is successfully participating in services that will make it possible for the children to safely return home within a reasonable time. Nor does it suggest that mother could establish that some other compelling reason exists to forgo changing the permanency plan to adoption. More to the point, if mother now believes that she can come forward with evidence that would satisfy her burden to prove such a "compelling reason," she may seek an opportunity to make her case by invoking ORS 419B.470(6), which gives her the right to a new permanency hearing on request unless "good cause otherwise is shown." Accordingly, we decline to exercise our discretion to remand. See S. J. K. , 296 Or. App. at 420, --- P.3d ---- (same).

Affirmed.


author: PER CURIAM

text:
    Michael William Alan BRAATZ, Petitioner-Respondent, v. Alexandra Cassandra Kathleen Lynn BRAATZ, Respondent-Appellant.
    A167165
    Court of Appeals of Oregon.
    Argued and submitted January 29, 2019. March 6, 2019
    Stacy M. Du Clos, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
    No appearance for respondent.
    Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.
   PER CURIAM

This is an appeal from a judgment of remedial contempt in which the trial court found that appellant had violated the parenting time provisions of a dissolution judgment. The court imposed, among other sanctions, a determinate term of "24 months of bench probation, with a stay of imposition of six months of jail," and a related bench probation fee in the amount of $100. On appeal, appellant assigns error to the imposition of those sanctions. Although appellant did not object to the challenged sanctions below, she relies on a series of our decisions to contend that the trial court plainly erred by imposing the determinate term of probation, and that we should exercise our discretion to correct that plain error.

Appellant is correct that we routinely have held that it is plain error for a trial court to impose a determinate term of probation as a sanction in a remedial contempt proceeding. Lamm and Lamm , 290 Or. App. 351, 354, 416 P.3d 310 (2018) ("We have consistently held that it is plain error to impose a determinate term of probation in a remedial contempt proceeding."); State v. Gardner , 287 Or. App. 225, 227, 401 P.3d 292 (2017) (trial court plainly erred by imposing a determinate term of probation in a remedial contempt proceeding because a determinate term of probation is a punitive sanction, not a remedial one); Altenhofen and Vanden-Busch , 271 Or. App. 57, 61-62, 349 P.3d 655, rev. den. , 358 Or. 449, 366 P.3d 719 (2015) (same). For that reason, we conclude that the trial court plainly erred in this case by imposing a determinate term of probation. We further conclude, for reasons similar to those in Altenhofen , that it is appropriate to exercise our discretion to correct that error. See Altenhofen , 271 Or. App. at 62, 349 P.3d 655 (concluding that "the interests of the parties, the gravity of the error, and the ends of justice" weighed in favor of correcting erroneously imposed term of probation, where the erroneous term exposed the defendant to the risk of sanctions and further proceedings to which he would not otherwise be subject).

Portions of judgment (1) imposing determinate term of probation, with stay of imposition of six months jail, and (2) imposing supervision fee reversed and remanded; otherwise affirmed.

      This contempt proceeding was initiated by appellant's former husband, "[a] party aggrieved by an alleged contempt of court." ORS 33.055(2)(a). For that reason, this proceeding necessarily is a remedial contempt proceeding and not a punitive one. Lamm and Lamm , 290 Or. App. 351, 354, 416 P.3d 310 (2018).


text:
    STATE of Oregon, Plaintiff-Respondent, v. Michael Manuel MARTINEZ, Defendant-Appellant.
    A165516
    Court of Appeals of Oregon.
    Submitted February 1, 2019. April 10, 2019
    Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Ingrid A. MacFarlane, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
    Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.
    Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.
   PER CURIAM

Defendant was convicted of 21 crimes related to assaults against his former girlfriend. About a week before trial, defendant asked the court to allow him to proceed pro se . The court refused, based on its reasoning that defendant was "not qualified to go pro se " and that what defendant was really asking for was a request "for an appeal purpose" rather than a "real heartfelt acknowledgment" of wanting to represent himself. On appeal, defendant argues that the trial court erred because he has the right to waive counsel and represent himself. See Johnson v. Premo , 355 Or. 866, 872, 333 P.3d 288 (2014) (remarking that "an individual litigant generally has the right to represent himself or herself in court" and, as "the United States Supreme Court has described, the right of self-representation is a bedrock principle of American jurisprudence dating back to the founding of our country" (citing Faretta v. California , 422 U.S. 806, 828-30, 830 n. 39, 95 S.Ct. 2525, 45 L.Ed.2d 562 (1975) )); Reed v. Roberts , 304 Or. 649, 655, 748 P.2d 542 (1988) ( ORS 9.320 provides that "[i]ndividuals may appear in their own behalf" in court.). The state concedes that the court erred by denying defendant the right to represent himself at trial. We agree and accept the state's concession. We therefore reverse and remand for a new trial on all counts on which defendant was convicted. State v. Nyquist , 293 Or. App. 502, 507-08, 427 P.3d 1137 (2018) (rejecting the state's argument that the proper disposition is a limited remand and reversing and remanding for a new trial).

Reversed and remanded.


text:
    STATE v. DAVIS, David Kif, aka Davis, David Kip
    A165270
    Court of Appeals of Oregon.
    March 13, 2019
    Affirmed without opinion.


text:
    STATE v. KALAVERAS, Constantine
    A166603
    Court of Appeals of Oregon.
    March 13, 2019
    Affirmed without opinion.


text:
    In the MATTER OF the MARRIAGE OF BELDING AND BELDING, nka Bowman
    A167388
    Court of Appeals of Oregon.
    March 13, 2019
    Affirmed without opinion.


text:
    MOONEYHAM, David Alan v. CAIN
    A167140
    Court of Appeals of Oregon.
    March 13, 2019
    Affirmed without opinion.


text:
    STATE v. BALZER, Brian Joseph
    A163914
    Court of Appeals of Oregon.
    March 13, 2019
    Affirmed without opinion.


text:
    STATE v. DELGADO, Emmanuel Marcelo
    A165803
    Court of Appeals of Oregon.
    March 13, 2019
    Affirmed without opinion.


text:
    STATE v. FARRAR, Steven Scott
    A165318
    Court of Appeals of Oregon.
    March 13, 2019
    Affirmed without opinion.


text:
    STATE v. FLEMING, Curtis Eugene
    A165774
    Court of Appeals of Oregon.
    March 13, 2019
    Affirmed without opinion.


text:
    STATE v. MORROW, Joshua Jay
    A165768
    Court of Appeals of Oregon.
    March 13, 2019
    Affirmed without opinion.


text:
    STATE v. NICHOLS, Christopher Michael
    A165672
    Court of Appeals of Oregon.
    March 13, 2019
    Affirmed without opinion.


text:
    STATE v. PLASCENCIA-MARTINEZ, Ariel P.
    A165315
    Court of Appeals of Oregon.
    March 13, 2019
    Affirmed without opinion.


text:
    STATE v. RYCKMAN, Thomas
    A165220
    Court of Appeals of Oregon.
    March 13, 2019
    Affirmed without opinion.


text:
    STATE v. SMITH, Jeremy Wayne, aka Lee, James Damn, aka Smith, Jerry Wayne
    A165259
    Court of Appeals of Oregon.
    March 13, 2019
    Affirmed without opinion.


text:
    In the MATTER OF K. R. B., II, a Child.
    Department of Human Services v. K. B.
    A169083
    Court of Appeals of Oregon.
    March 20, 2019
    Affirmed without opinion.


text:
    STATE v. CHADLY, Raymond Troy
    A165171
    Court of Appeals of Oregon.
    March 13, 2019
    Affirmed without opinion.


text:
    STATE v. MANDERFELD, Ryan William
    A164133 (A164134)
    Court of Appeals of Oregon.
    March 13, 2019
    Affirmed without opinion.


text:
    STATE v. SALAS-JUAREZ, Luis Alberto
    A164846
    Court of Appeals of Oregon.
    March 13, 2019
    Affirmed without opinion.


text:
    CARRILLO-MACHAIN, Jesus v. POPOFF
    A165028
    Court of Appeals of Oregon.
    March 20, 2019
    Affirmed without opinion.


text:
    In the MATTER OF A. A. W., a Person Alleged to have Mental Illness.
    State v. A. A. W.
    A167560
    Court of Appeals of Oregon.
    March 20, 2019
    Affirmed without opinion.


text:
    In the MATTER OF A. M. P., a Youth.
    State of Oregon v. A. M. P.
    A166089
    Court of Appeals of Oregon.
    March 20, 2019
    Affirmed without opinion.


text:
    In the MATTER OF C. F., a Person Alleged to have Mental Illness.
    State v. C. F.
    A166493
    Court of Appeals of Oregon.
    March 20, 2019
    Affirmed without opinion.


text:
    In the MATTER OF J. P., a Child.
    Department of Human Services v. C. M. P.
    In the Matter of S. P., a Child.
    Department of Human Services v. C. M. P.
    A168972, (A168975), (A168973), (A168974)
    Court of Appeals of Oregon.
    March 20, 2019
    Affirmed without opinion.


text:
    In the MATTER OF K. L. H., aka K. M., a Child.
    Department of Human Services v. R. A. H. Jr. et al.
    In the Matter of S. E. H., aka S. M., a Child.
    Department of Human Services v. R. A. H., Jr. et al.
    A168822 A168823
    Court of Appeals of Oregon.
    March 20, 2019
    Affirmed without opinion.


text:
    In the MATTER OF L. A. R. W, a Child.
    Department of Human Services v. L. G. R.
    In the Matter of N. W, a Child.
    Department of Human Services v. L. G. R.
    In the Matter of T. M. W., a Child.
    Department of Human Services v. L. G. R.
    In the Matter of K. W., a Child.
    Department of Human Services v. L. G. R.
    A168665 A168666 A168667 A168668
    Court of Appeals of Oregon.
    March 20, 2019
    Affirmed without opinion.


text:
    In the MATTER OF M. M. H., a Child.
    Department of Human Services v. J. R.
    A168906
    Court of Appeals of Oregon.
    March 20, 2019
    Affirmed without opinion.


text:
    In the MATTER OF O. A., a Person Alleged to have Mental Illness.
    State v. O. A.
    A167580
    Court of Appeals of Oregon.
    March 20, 2019
    Affirmed without opinion.


text:
    In the MATTER OF T. V., a Person Alleged to have Mental Illness.
    State v. T. V.
    A167171
    Court of Appeals of Oregon.
    March 20, 2019
    Affirmed without opinion.


text:
    In the MATTER OF the COMPENSATION OF ALLEN, Brenda Y., Claimant.
    Kraft Heinz Foods - HJ Heinz v. Allen
    A163963
    Court of Appeals of Oregon.
    March 20, 2019
    Affirmed without opinion.


text:
    In the MATTER OF the MARRIAGE OF SOUTHARD AND PALMERO
    A167835
    Court of Appeals of Oregon.
    March 20, 2019
    Affirmed without opinion.


text:
    NICITA v. CITY OF OREGON CITY et al.
    A169700
    Court of Appeals of Oregon.
    March 20, 2019
    Affirmed without opinion.


text:
    HUNT v. CITY OF THE DALLES et al.
    A169820
    Court of Appeals of Oregon.
    March 20, 2019
    Affirmed without opinion.


text:
    SERRANO v. ALTAMIRANO-GOMEZ, aka Ahamirano-Gomez
    A166616
    Court of Appeals of Oregon.
    March 20, 2019
    Affirmed without opinion.


text:
    STATE v. GWYNNE, Carl Martin
    A167340
    Court of Appeals of Oregon.
    March 20, 2019
    Affirmed without opinion.


text:
    BRANDON, Raymond Lee v. BOARD OF PAROLE AND POST-PRISON SUPERVISION
    A163024
    Court of Appeals of Oregon.
    March 20, 2019
    Affirmed without opinion.


text:
    In the MATTER OF the COMPENSATION OF CASASOLA, Rocio C, Claimant.
    Casasola v. SAIF Corporation et al.
    A165114
    Court of Appeals of Oregon.
    March 20, 2019
    Affirmed without opinion.