State v. Lillian

No. 1074 November 4, 2026 451 This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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. REGAN LILLIAN, Defendant-Appellant. Polk County Circuit Court 25CR01175; A187766 Rafael A. Caso, Judge. Submitted September 11, 2026. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and David Sherbo-Huggins, Deputy Public Defender, Oregon Public Defense Commission, filed the brief for appellant. Dan Rayfield, Attorney General, Paul L. Smith, Solicitor General, and Christopher A. Perdue, Assistant Attorney General, filed the brief for respondent. Before Lagesen, Chief Judge, and Egan, Judge.* EGAN, J. Remanded for resentencing; otherwise affirmed. ______________ * Determined by a two-judge department as authorized by ORS 2.570(2)(b). 452 State v. Lillian EGAN, J. Defendant pleaded guilty to driving while sus- pended or revoked. On appeal, defendant challenges a provision that appeared for the first time in the judgment ordering her to “pay any required per diem fees.” The state concedes that the trial court erred by imposing per diem fees for the first time in the judgment, and we accept the state’s concession. State v. Barr, 331 Or App 242, 244-45, 545 P3d 772 (2024) (reversible error to include per diem fees in judgment when those fees were not addressed at the sen- tencing hearing). As to the disposition, the remedy for unannounced terms is usually resentencing. E.g., id. However, if the court states on the record that it would waive fines and fees, resen- tencing is not necessary because there are “no permissible sentencing options that the court may adopt relative to that error,” and “the judgment simply needs to be corrected to conform to what the court ordered.” State v. Debruyne, 347 Or App 421, 423, 587 P3d 433 (2026). In those circumstances, we reverse the portion of the judgment that does not conform to the court’s order. In arguing for reversal of that portion of the judgment, defendant observes that the trial court did not announce any monetary obligations at sentencing, which suggests that it did not intend to impose any; the state agrees that the court did not indicate an intent to impose any fines or fees and that we should remand for entry of a judgment deleting the term authorizing per diem fees. We conclude that a remand for resentencing is the appropriate disposition. Here, the record is silent as to the imposition of fees. As a result, the trial court could permis- sibly impose them on remand. See id.; State v. Tison, 292 Or App 369, 374-75, 424 P3d 823, rev den, 363 Or 744 (2018) (remand for resentencing necessary because there was no record of trial court’s intention regarding discretionary waiver of $255 fee); ORS 138.257(4)(a)(B) (remand for resen- tencing is required when the “trial court, in imposing or failing to impose a sentence in the case, committed an error that requires resentencing”). Remanded for resentencing; otherwise affirmed.