State v. Kilgore, 435 P.3d 817

Background

Defendant pleaded guilty to offenses in two consolidated cases, receiving probation sentences; one case (17CR22754) included convictions for two counts of fourth-degree assault and one count of strangulation.
The trial court's judgment, for the first time, imposed a special probation condition prohibiting defendant from "consum[ing] or possess[ing]
- marijuana."
Defendant challenged that absolute marijuana ban on appeal, arguing it conflicts with ORS 137.542(2) by failing to except medical-marijuana use for cardholders. He sought deletion or modification to permit medical marijuana.
The State conceded the imposition was erroneous if the defendant is a medical-marijuana cardholder but argued the court must first determine whether defendant actually holds a registry card and, if so, then adjust conditions.
The appellate court agreed with the State: because the judgment—rather than open-court pronouncement—first added the condition, defendant need not have preserved the issue; the matter was remanded for resentencing so the trial court can determine whether the defendant holds a registry identification card and, if so, modify the probation condition to comply with ORS 137.542(2). The appeal in the other case was dismissed as moot because probation there had terminated.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether a probation condition that completely bans marijuana possession/use is permitted under ORS 137.542(2)	State: The ban is permissible unless the probationer holds a medical-marijuana registry card; if a cardholder, the statute requires conditions be imposed like for prescription drugs, so court must determine cardholder status	Defendant: Absolute ban violates ORS 137.542(2); at minimum, allow medical-marijuana use for cardholders or strike the condition now	Remanded for resentencing to determine whether defendant holds a registry card; if he does, condition must be modified to comply with ORS 137.542(2)
Whether the appellate claim required preservation at trial	State: Preservation may be required depending on how condition was imposed	Defendant: No preservation required because condition first appeared in written judgment, not announced in open court	Held: No preservation required where condition appeared only in the judgment; appellate review permitted
Whether the trial court could, even for cardholders, nevertheless prohibit medical marijuana under ORS 137.540(2)	State: Trial court retains discretion to prohibit if reasonably related to crime or rehabilitation/public protection	Defendant: ORS 137.542(2) constrains that discretion for cardholders; blanket bans invalid	Held: Court rejected State's argument (citing Bowden); ORS 137.542(2) limits the ability to impose an unqualified prohibition for cardholders
Appropriate remedy when record does not show cardholder status	Defendant: Strike invalid condition now (citing Donovan)	State: Remand so trial court can make factual determination about cardholder status	Held: Remand required to determine cardholder status; then modify condition if statute applies (Donovan distinguished)

Key Cases Cited

State v. Jerscheid, 294 Or. App. 564 (2018) (interpreting ORS 137.542(2) to require medical-marijuana exception for probationers who are registry cardholders)
State v. Rhamy, 294 Or. App. 784 (2018) (remanding where court failed to determine registry-cardholder status before imposing unqualified marijuana prohibition)
State v. Bowden, 292 Or. App. 815 (2018) (rejecting argument that trial court retains unchecked discretion under ORS 137.540(2) to prohibit medical marijuana for cardholders)
State v. Donovan, 307 Or. 461 (1989) (invalid probation conditions that are unlawful under all circumstances may be stricken without remand)
State v. Mack, 156 Or. App. 423 (1998) (remanding for resentencing when factual determinations supporting special conditions were not made)
State v. Lewis, 236 Or. App. 49 (2010) (preservation not required where aspects of sentence appear only in the written judgment)