State v. Cunningham

"If the other requirements of ORS 137.542(2) are satisfied--that is, if a person holds a registry identification card and is sentenced to probation--the probation conditions related to the use of usable marijuana and specified cannabinoid products must comply with the statute.” State v. Jerscheid, 294 Or App 564, 566 (2018).

Defendant appealed convictions of Hindering Prosecution, Unlawful Delivery of Heroin, Possession of a Destructive Device, and First-Degree Theft. On appeal, Defendant argued that the trial court plainly erred in the length of imposed post-prison supervision, as it was 12 months longer than the sentencing guidelines allowed. Defendant also argued that the trial court erred by imposing prohibition restrictions on all forms of marijuana, including prescribed, which violated ORS 137.542(2). On both plain error claims, Defendant failed to preserve the error, therefore Defendant requested that the Court of Appeals correct the error as plain errors under ORAP 5.45. In response, the State argued ORS 137.542(2) applied only to those who hold a medical marijuana registry identification card, and the record failed to show Defendant held such. The state concedes that the trial court plainly erred in determining the length of post-prison supervision.  “If the other requirements of ORS 137.542(2) are satisfied--that is, if a person holds a registry identification card and is sentenced to probation--the probation conditions related to the use of usable marijuana and specified cannabinoid products must comply with the statute.” State v. Jerscheid, 294 Or App 564, 566 (2018). The Court held that because the record does not obtain any evidence that Defendant held a registry identification card, the trial court did not commit plain error. The court did accept the State’s concession regarding the length of post-prison supervision.  Affirmed in part and remanded in part.