On respondent’s petition for reconsideration filed July 27, 2022; reconsideration allowed, former opinion (320 Or App 753, 514 P3d 1182) modified and adhered to as modified February 15, 2023

CURTIS FROST, JR., Petitioner-Appellant, v. STATE OF OREGON, Defendant-Respondent.

Clackamas County Circuit Court 18CV56587, 18CV56583, 18CV56584; A173895 (Control), A173892, A173894 525 P3d 98 In this petition for reconsideration, the state asserts that the Court of Appeals erred in construing or applying the law in the opinion published at 320 Or App 753, 514 P3d 1182 (2022). Held: Upon reconsideration, the Court of Appeals agreed with the state and therefore modified the opinion to eliminate a portion that was capable of causing confusion. The Court of Appeals adhered to the disposition announced in the original opinion.

Reconsideration allowed; former opinion modified and adhered to as modified.

Kathie F. Steele, Judge.

Jason Weber and O’Connor Weber LLC filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jordan R. Silk, Assistant Attorney General, filed the brief for respondent.

Before Shorr, Presiding Judge, and Mooney, Judge, and Pagán, Judge.

PAGÁN, J.

Reconsideration allowed; former opinion modified and adhered to as modified.

296 Frost v. State of Oregon PAGÁN, J.

The state1 petitions for reconsideration of our decision in Frost v. State of Oregon, 320 Or App 753, 514 P3d 1182 (2022), claiming that we “erred in construing or applying the law” with respect to our determination that petitioner’s assigned errors were plain under relevant case law. As a result, the state asserts, there was no basis for finding plain error, and we should instead affirm the post- conviction court’s denial of relief in each of the cases consol- idated for appeal. Although we adhere to our disposition, we allow reconsideration to address the state’s contention that we erred in construing or applying the law, and modify our opinion as described below.

The state contends that we misapplied controlling case law governing the determination of whether an unpre- served error was plain. We agree with the state that the sentence citing State v. Fults, 343 Or 515, 520, 173 P3d 822 (2007) and State v. Berndt, 282 Or App 73, 80, 386 P3d 196 (2016), rev den, 361 Or 311 (2017), is capable of causing con- fusion, even more so in light of the Supreme Court’s recent decision in State v. Chitwood, 370 Or 305, 322-24, 518 P3d 903 (2022), issued after the petition for reconsideration and response were filed in this case. Hence, we modify our opin- ion to delete that sentence at 320 Or App at 759 and its cita- tions to Fults and Berndt. We also delete “What matters” in the sentence that follows and replace it with the following text: “There are no competing inferences to be drawn from the record here because the court was required to order peti- tioner’s presence at the hearing unless it determined that certain conditions were satisfied. Having not done so, what matters”.

Reconsideration allowed; former opinion modified and adhered to as modified.

To avoid any confusion between the post-conviction relief petitions and the petition for reconsideration, we refer to respondent below as “the state.”