State v. Cope

No. 1039 October 28, 2026 247 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. BARRY LAYNE COPE, JR., Defendant-Appellant. Lincoln County Circuit Court 22CR13660, 22CR29516; A186917 (Control), A186918 Sheryl Bachart, Judge. Submitted September 24, 2026. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kasey Anne Hooker, Deputy Public Defender, Oregon Public Defense Commission, filed the briefs for appellant. Dan Rayfield, Attorney General, Paul L. Smith, Solicitor General, and Colm Moore, Assistant Attorney General, filed the brief for respondent. Before Ortega, Presiding Judge, Lagesen, Chief Judge, and O’Connor, Judge. LAGESEN, C. J. Affirmed. 248 State v. Cope LAGESEN, C. J. In this consolidated criminal appeal, defendant appeals judgments of the trial court revoking probation in two criminal cases and imposing sentences of 13 months in each case to run consecutively. In two identical assignments of error, defendant contends that in each case the trial court erred by revoking probation based on a condition that was not ordered in the original judgments imposing probation. Specifically, defendant contends that the original judgment in each case specifically deleted the general condition that he should “report as required and abide by the direction” of his probation officer, ORS 137.540(1)(k), because the judg- ments specified other conditions not including that require- ment. Defendant concedes that his argument is not pre- served and seeks plain-error review. We conclude that the assigned legal error is not obvious, which precludes plain- error review. For that reason, we affirm. For a reviewing court to reach an unpreserved error, the error must be (1) an error of law, (2) obvious and not reasonably in dispute, and (3) apparent on the face of the record, meaning that the reviewing court need not go outside the record or choose between competing inferences to identify the error. Ailes v. Portland Meadows, Inc., 312 Or 376, 381–82, 823 P2d 956 (1991). Here, defendant alleges that the trial court plainly committed a legal error by revoking based on a general condition of probation that, in defendant’s view, had been deleted from the judgments. Defendant’s theory is that by listing conditions of probation in each judgment, the trial court “specifically deleted” general conditions of probation for purposes of ORS 137.540(1). Challenged by the state on his assumption that a listing of probation conditions in a judgment necessarily “specifically deletes” general condi- tions of probation otherwise required by the statute, defen- dant argues that it is possible for a court to specifically delete general conditions “by implication.” In support of that proposition, defendant cites State v. Zamora-Martinez, 210 Or App 22, 24-27, 150 P3d 25 (2006). However, in Zamora- Martinez, we concluded that the trial court had deleted a general condition because the express terms of the judgment Nonprecedential Memo Op: 354 Or App 247 (2026) 249 indicated that that was the trial court’s intention: “The judgment contained a provision that was to supersede ORS 137.540(1)(o) in the event that defendant was deported.” Zamora-Martinez, 210 Or App at 27. Those circumstances are distinct from the circumstances in defendant’s case, in which the judgments do not expressly specify an intention to displace or supersede general conditions of probation. The question of whether a trial court specifically deletes general conditions of probation by naming other conditions that do not expressly supersede general conditions thus is not obvi- ous and is reasonably in dispute. For that reason, the alleged errors are not eligible for plain-error review. Affirmed.