State v. Potter

816 P.2d 661 (1991)

108 Or.App. 480

STATE of Oregon, Respondent, v. Richard Fleming POTTER, Appellant.

90CR-0942, 90CR-0943; CA A65686.

Court of Appeals of Oregon.

Argued and Submitted June 20, 1991.

Decided August 21, 1991.

Sally L. Avera, Public Defender, Salem, argued the cause and filed the brief for appellant.

*662 Stephanie Andrus, Certified Law Student, Salem, argued the cause for respondent. On the brief were Dave Frohnmayer, Atty. Gen., Virginia L. Linder, Sol. Gen., and Janet A. Klapstein, Asst. Atty. Gen., Salem.

Before WARREN, P.J., and RIGGS and EDMONDS, JJ.

PER CURIAM.

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 postprison supervision vacated; remanded for resentencing.