Summary
vacating term of judgment addressing conditions of incarceration, because trial courts lack authority to impose conditions of incarceration
Summary of this case from State v. KragtOpinion
90CR-0942, 90CR-0943; CA A65686
Argued and submitted June 20, 1991
Appeal from Circuit Court, Coos County.
Robert F. Walberg, Judge.
Sally L. Avera, Public Defender, Salem, argued the cause and filed the brief for appellant.
Stephanie Andrus, Certified Law Student, Salem, argued the cause for respondent. On the brief were Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Janet A. Klapstein, Assistant Attorney General, Salem.
Before Warren, Presiding Judge, and Riggs and Edmonds, Judges.
PER CURIAM
Convictions affirmed; portion of sentence ordering treatment during incarceration and establishing conditions of post-prison supervision vacated; remanded for resentencing.
Defendant pleaded guilty to two counts of sexual abuse in the first degree. ORS 163.425. In addition to sentencing him to consecutive five-year sentences for the two offenses, the trial court also ordered that, while incarcerated, he receive treatment in the Forensic Sex Offender Program and that "post-prison supervision shall include conditions of polygraph, no use of intoxicants, continued mental health treatment," as well as not associating with certain people, including the victim. Although defendant did not object to the sentences below, we nonetheless consider his claim that the trial court erred in ordering the conditions of incarceration and parole, because the errors are apparent on the face of the record. ORAP 5.45(2); State v. Edwards, 103 Or. App. 410, 797 P.2d 402 (1990); State v. Braughton, 28 Or. App. 891, 561 P.2d 1040 (1977).
Defendant is correct that the trial court has no authority to impose conditions of incarceration or parole. ORS 137.010(7); State v. Edwards, supra. The state urges us to consider the orders as recommendations to the Department of Corrections and the Board of Parole. We decline to do that. On remand, the court may, if it deems it appropriate, make specific recommendations for in-custody treatment and conditions of parole.
Convictions affirmed; portion of sentence ordering treatment during incarceration and establishing conditions of post-prison supervision vacated; remanded for resentencing.