Background
Jacob Weber faced charges in two consolidated Polk County cases. In Case No. 22CR59486, he was convicted after a bench trial of first-degree criminal possession of a forged instrument. In Case No. 23CR45662, he was convicted after a jury trial of first-degree theft arising from the theft of a trailer from a storage unit.
During the jury trial on the theft charge, defense counsel announced — after the state had rested its case — that he intended to call a witness named Spray who had never been disclosed on the defense witness list. Counsel acknowledged the omission, explaining that he had only learned her name that week and had not confirmed her attendance until that morning. The state objected on the grounds it had no prior notice and no opportunity to contact the witness. The trial court found a discovery violation and excluded Spray. Neither party moved for a continuance or requested any alternative sanction.
In both cases, the written judgments of conviction included a requirement that Weber pay “any required per diem fees” — fees that the trial court had never mentioned at either sentencing hearing.
The Court’s Holding
The Court of Appeals affirmed both convictions. On the witness-exclusion issue, the court held that Weber had failed to preserve his argument that the trial court should have imposed a lesser sanction or granted a continuance instead of excluding the witness. Because defense counsel neither objected to the specific sanction imposed nor argued for an alternative remedy at trial, the claim was unpreserved. Weber did not request plain error review on appeal, so the court declined to reach the merits.
On the sentencing issue, the court accepted the state’s concession of error. Under State v. Barr, 331 Or App 242 (2024), a trial court errs by imposing per diem fees in a written judgment without first announcing them at the sentencing hearing. Because the fees appeared for the first time in the written judgments — not at the open-court hearings — preservation was excused and both judgments were remanded for resentencing.
Key Takeaways
- A defendant who fails to object to a discovery-violation sanction at trial — and does not argue for a lesser sanction or continuance — forfeits that argument on appeal; the claim is unpreserved and will not be reviewed absent a plain-error request.
- Per diem fees may not be imposed for the first time in a written judgment of conviction; they must be announced in open court at the sentencing hearing, or the judgment is subject to remand for resentencing.
- Where an illegal condition appears for the first time in a written judgment (rather than at the hearing), preservation is excused and the defendant may challenge it on appeal without a contemporaneous objection.
Why It Matters
The witness-exclusion holding reinforces Oregon’s strict preservation rules in the discovery-sanction context: defense counsel who accept an exclusion remedy without pressing for alternatives at trial cannot seek relief on constitutional compulsory-process grounds on appeal. Practitioners facing late-disclosed witnesses — on either side — must raise all alternative-sanction arguments in the trial court to keep them alive.
The sentencing remand is a straightforward application of Barr and serves as a practical reminder that any financial obligation imposed on a defendant must be pronounced on the record in open court. Quietly inserting fees into a written judgment, even boilerplate language about per diem costs, will trigger remand — a procedural trap that courts and prosecutors should take care to avoid.