State v. Lebanno

172

Argued and submitted June 11, reversed and remanded September 1, 2021

STATE OF OREGON,

Plaintiff-Respondent,

v.

KENNETH EUGENE LEBANNO,

Defendant-Appellant.

Multnomah County Circuit Court

19CR46221; A172543

497 P3d 1280

An officer observed defendant and a second man in a high-crime area of a

public park, behaving furtively with a small item before engaging in a hand-

shake that appeared to conceal the transfer of the item. Defendant was immedi-

ately arrested, methamphetamine was discovered in his possession, and he was

convicted of unlawful possession of methamphetamine. On appeal, defendant

assigns error to the trial court’s denial of his motion to suppress the evidence.

Specifically, defendant argues that the arrest violated Article I, section 9, of the

Oregon Constitution because it was not supported by probable cause to believe

that he had engaged in an illegal drug transaction. Held: Because the totality of

the circumstances known to the officer did not support probable cause to believe

that defendant had just obtained illegal drugs from the second man, the trial

court erred in denying defendant’s motion to suppress the evidence obtained as a

result of his warrantless arrest.

Reversed and remanded.

Andrew M. Lavin, Judge.

Mark Kimbrell, Deputy Public Defender, argued the

cause for appellant. Also on the brief was Ernest G. Lannet,

Chief Defender, Criminal Appellate Section, Office of Public

Defense Services.

Greg Rios, Assistant Attorney General, argued the cause

for respondent. Also on the brief were Ellen F. Rosenblum,

Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Shorr, Judge, and

Powers, Judge.

SHORR, J.

Reversed and remanded.

Cite as 314 Or App 172 (2021) 173

SHORR, J.

Defendant appeals from a judgment of conviction for

unlawful possession of methamphetamine, assigning error

to the trial court’s denial of his motion to suppress evidence

obtained following his warrantless arrest. Specifically, defen-

dant argues that the arrest violated Article I, section 9, of

the Oregon Constitution, because it was not supported by

probable cause to believe that he had engaged in an illegal

drug transaction. We agree, and, accordingly, reverse and

remand.

We review the trial court’s ruling denying defen-

dant’s motion to suppress for legal error. State v. Maciel-

Figueroa, 361 Or 163, 165, 389 P3d 1121 (2017). In so doing,

we are bound by the court’s factual findings if there is con-

stitutionally sufficient evidence in the record to support

them. State v. Ehly, 317 Or 66, 75, 854 P2d 421 (1993). We

summarize the facts in accordance with those standards.

At 9:41 a.m. on a Monday in July, Portland Police

Officer Browning was in downtown Portland’s Waterfront

Park engaged in a “spotting mission,” or what he described

as going “into the high crime areas and look[ing] for crimi-

nal activity.” Browning was scanning the area underneath

the Burnside Bridge with a pair of binoculars while he sat

parked in an unmarked police car. Browning had worked

as a police officer downtown for seven years, which included

assignments in the Old Town neighborhood encompassing

the northern part of Waterfront Park. He testified that “most

of that time I worked on street level drug use and combating

street level drug use [and] drug sales” and had dealt with

over 100 drug cases during his career. Browning testified

that the specific part of the park underneath the Burnside

Bridge was a “high drug and vice area.” He elaborated that

it was common for the police to receive calls reporting drug

use or drug sales at that location. He specified camping,

loitering, and littering as other unlawful activities that

frequently occur there. The area also hosts the Portland

Saturday Market and is a popular spot for runners, walkers,

bikers, and commuters.

With his binoculars, Browning spotted several

people, including defendant, standing under the Burnside

174 State v. Lebanno

Bridge about 100 feet away from where he was parked. His

view of the group was unobstructed. Browning watched

an individual (later identified as Cauley) walk up to the

group and begin “socializing.” Cauley then reached into

a bag he was carrying and removed a “very small” item.

Cauley held the item in the palm of his closed hand, open-

ing his hand occasionally to look at the item or to allow

defendant to look at the item, “then he would close it and

look around for a little bit.” Browning could not see what

the item was. Cauley and defendant engaged in a hand-

shake in which they slapped their hands together, slowly

slid their hands back towards themselves with their hands

still touching, locked their fingers together in a curled

position, and finally let go and separated their hands.

Defendant and Cauley then walked away in separate direc-

tions. Altogether, the men had interacted for less than

15 minutes.

Browning testified that he had seen the type of

handshake the men engaged in before, and stated that it

allows a person to “scoop out from whatever is in the [other

person’s] hand,” is usually used when “somebody is trying

to pass something off without letting anybody know that

they are actually passing something off,” and is “a common

occurrence in a street level drug transaction.” Browning

believed that the men were “trying to be sneaky and hid-

ing what they were doing.” However, Browning also testified

that the handshake was “commonplace” and seen in “every-

day socializing” unrelated to criminal activity. Based on

“the type of area we were in, the criminal activity that we

were looking for, [and] the body language between [Cauley

and defendant],” Browning believed that the men had “just

exchanged some sort of illegal narcotics.”

Browning “notified the assisting officers via radio”

and asked them to detain defendant and Cauley. A second

officer then approached defendant, placed him in handcuffs,

read him his Miranda rights, and searched him, result-

ing in the discovery of a pipe and a small bag of metham-

phetamine. The officer asked defendant if he had obtained

the methamphetamine from Cauley, to which defendant

responded that he had.

Cite as 314 Or App 172 (2021) 175

In advance of trial, defendant moved to suppress

“all evidence, direct and derivative, discovered pursuant to

an invalid search and seizure and to suppress all statements

made by Defendant while in state custody.” Specifically,

defendant argued that the circumstances known to

Browning at the time he radioed for defendant’s arrest did

not support an objectively reasonable belief that defendant

had probably committed a crime. Defendant highlighted the

fact that, despite Browning’s testimony that the spot was

a high-crime area, the interaction occurred on a weekday

morning, when the area was open to the public and popu-

lar amongst walkers, runners, bikers, and commuters. He

also argued that the handshake itself was not particularly

suspicious and was common “in everyday occurrences that

weren’t drug deals.” The state argued that several factors

added up to probable cause: the fact that Cauley showed

defendant a small item in his hand right before the hand-

shake; the fact that the handshake was done slowly, sup-

porting an inference that it was concealing an exchange;

the fact that the handshake occurred in a high-crime loca-

tion; and the fact that the men behaved furtively, as if they

were trying to hide what they were doing. The trial court

denied defendant’s motion, concluding that the officers had

probable cause to believe that defendant had just received

illegal drugs from Cauley, and therefore probable cause

to arrest him. Defendant entered a conditional no-contest

plea, reserving in writing the right to challenge the court’s

denial of his motion. ORS 135.335(3). This timely appeal

followed.

On appeal, defendant assigns error to the trial

court’s denial of his motion to suppress the evidence discov-

ered subsequent to his warrantless arrest. We review such

rulings as a matter of law. State v. Martin, 260 Or App 461,

463, 317 P3d 408 (2014) (Martin II).1 Defendant reiterates

his argument that the officers “lacked an objectively reason-

able basis to conclude that defendant was engaged in a drug

transaction[,] and, therefore, lacked probable cause to arrest

1

We cite two cases titled State v. Martin in this opinion. We refer to the 1998

case, State v. Martin, 327 Or 17, 956 P2d 956 (1998), as “Martin I,” and the 2014

case, State v. Martin, 260 Or App 461, 317 P3d 408 (2014), as “Martin II,” although

the defendants in the cases are not the same and the cases are not related.

176 State v. Lebanno

him.” In so arguing, defendant highlights (1) the interaction

occurred on a weekday morning in an area where noncrim-

inal activities such as running, walking, biking, and com-

muting commonly occur; (2) Browning did not know defen-

dant or Cauley, or possess any information other than their

interaction that could have suggested that the men were

involved with illegal drugs; and (3) Browning did not observe

an exchange of money or see defendant reach in his pockets,

making it unclear whether the men even exchanged any-

thing during the commonplace handshake, let alone illegal

drugs. The state argues that it was objectively reasonable for

Browning to believe that defendant possessed illegal drugs

because he had observed a furtive hand-to-hand transaction

in a high-crime area. The state contends that those facts,

viewed through Browning’s experience with the handshake

as a method for concealing street-level drug deals, establish

probable cause.

We first consider the law that controls our analysis

of defendant’s warrantless arrest. Article I, section 9, pro-

tects individuals against unreasonable searches and sei-

zures.2 In accordance with those protections, arrests must

be supported by probable cause. Martin II, 260 Or App at

469. Probable cause is present when an officer subjectively

believes that it is more likely than not that a crime has been

committed and that the person to be arrested has commit-

ted it, and when that subjective belief is objectively reason-

able under the circumstances. State v. Miller, 157 Or App

489, 492, 972 P2d 896 (1998), rev den, 328 Or 365 (1999). In

determining whether an officer possessed probable cause,

we examine the totality of the circumstances known to the

officer, including reasonable inferences that may be drawn

from those circumstances in light of the officer’s relevant

training and experience. State v. Sanchez-Anderson, 300 Or

App 767, 773, 455 P3d 531 (2019). Officer training and expe-

rience alone, however, are insufficient to establish probable

cause without specific, observable facts that are particular-

ized to the defendant. State v. Aguilar, 307 Or App 457, 470,

478 P3d 558 (2020) (“Officer experience might explain legal

2

Article I, section 9, provides, in part: “No law shall violate the right of the

people to be secure in their persons, houses, papers, and effects, against unrea-

sonable search, or seizure[.]”

Cite as 314 Or App 172 (2021) 177

but otherwise suspicious behavior to place it in context for

the factfinder, but it cannot be a substitute for specific and

articulable facts.”). The state bears the burden of proving

that a warrantless arrest was supported by probable cause.

State v. Barker, 271 Or App 63, 68, 348 P3d 1138 (2015). If

an officer possesses probable cause to arrest, they may also

search the individual for reasonably concealable evidence of

the crime of arrest. State v. Owens, 302 Or 196, 200-02, 729

P2d 524 (1986).

In the instant case, the state does not dispute that

defendant was arrested when the second officer intercepted

him and placed him in handcuffs. Further, defendant does

not dispute that Browning subjectively believed that defen-

dant had just engaged in an illegal drug transaction. The

only issue, then, is whether it was objectively reasonable

for Browning to believe that, more likely than not, defen-

dant had accepted illegal drugs from Cauley. In consider-

ing that question, the trial court relied on three cases: State

v. Martin, 327 Or 17, 956 P2d 956 (1998) (Martin I), State

v. Jacobs, 187 Or App 330, 67 P3d 408 (2003), and State v.

Green, 67 Or App 70, 676 P2d 938, rev den, 297 Or 82 (1984).

Because the parties also cite these cases to us in support

of their arguments on appeal, and because we agree that

all three cases are instructive to our analysis, we briefly

recount the facts of those cases.

In Martin I, an off-duty police officer was stopped

behind a van at a red light at 11:20 p.m. 327 Or at 19. The

officer observed the van’s passenger gesture at the defen-

dant, a man who was standing near a bus shelter on the

adjacent sidewalk. Id. The defendant looked to his left and

right, approached the van, put his head and one hand inside

the open window for three seconds, and then turned and

walked away while putting his hand in his pocket. Id. The

officer knew that that particular corner was a location where

hand-to-hand crack sales occurred “twenty-four hours a

day, seven days a week,” due to the fact that a number of

drug dealers lived in a nearby apartment complex. Id. at

20, 22. Although he had not witnessed a transfer, what he

did observe was consistent with other hand-to-hand trans-

actions that he had observed at that very corner. Id. at 21.

Two hours later when the officer was on duty, he returned

178 State v. Lebanno

to the intersection, saw the defendant standing on the same

corner, and arrested him. Id. at 20.

The Supreme Court concluded that the above facts

were sufficient to establish that the officer possessed probable

cause to believe that the defendant was dealing illegal drugs.

Id. at 22. Specifically, the court noted the high-crime charac-

ter of the specific corner where the defendant was observed;

the defendant’s presence there late at night without any

“apparent purpose for being there”; the fact that the defendant

looked both ways before approaching the van, “as if to assure

that he would not be observed closely when he reached it”; and

the fact that the “duration, intensity, [and] furtiveness [of the

interaction], and defendant’s apparent pocketing of something

immediately afterward” were all consistent with a hand-to-

hand transaction. Id. at 21. In addition, the court found it

“[e]specially significant” that the defendant was at the location

two hours later, “reinforcing the belief that he was dealing

drugs on the corner.” Id. at 22. The fact that the officer had not

actually witnessed a hand-to-hand transaction did not dimin-

ish or eliminate his probable cause, considering the totality

of the circumstances. Id. (“[S]eeing something in a suspected

dealer’s hand cannot be the sine qua non of probable cause,

any more than any other single fact.”).

Next, in Jacobs, an officer driving through down-

town Salem at 6:00 p.m. observed the defendant and two

other men on a sidewalk near a bank parking lot and ATM.

187 Or App at 332. The men were “huddled together” and

looking around nervously as the defendant passed what

appeared to be cash to one of the other men. Id. The officer

regarded the entire downtown area as a “high drug traffic

area,” and believed that a drug transaction had just taken

place. Id. He stopped the men and searched the defendant,

discovering marijuana. Id.

We concluded that the officer lacked probable cause

to search the defendant. Id. at 336. Although the state argued

that the Supreme Court’s decision in Martin I was instruc-

tive, we distinguished that case on several grounds. Id. at

335. First, unlike in Martin I, the events had not occurred

at a specific location known for “continuous, hand-to-hand

drug traffic,” and the only evidence regarding the location

Cite as 314 Or App 172 (2021) 179

was “a vague reference to the entirety of downtown Salem

as a ‘high drug traffic area.’ ” Id. Additionally, the “defen-

dant was observed at around 6:00 p.m. exchanging money

in the vicinity of an ATM,” not late at night at a location

where there was no obvious, legal purpose for being there.

Id. Lastly, we concluded that the defendant’s furtive behav-

ior did not establish probable cause, in light of the fact that

there was no other persuasive evidence that a crime had

probably occurred. Id. at 335-36.

Finally, in Green, an officer was patrolling down-

town Portland at 5:30 p.m. in a marked police car when he

observed the defendant and a known Ritalin dealer stand-

ing and talking outside a bar. 67 Or App at 72. The offi-

cer was familiar with street-level Ritalin transactions and

knew that the specific area was a “major Ritalin distribu-

tion” location. Id. at 72-73. Fifteen minutes later, the officer

drove back by the bar and saw the defendant with another

man. Id. at 72. The man handed the defendant cash and

the defendant reached into his pocket and removed a small

unidentified object, which he held between his thumb and

forefinger. Id. As the defendant started to hand the object

to the man, he noticed the police car and jerked his hand

back in his pocket. Id. The officer stopped and searched the

defendant, discovering Ritalin. Id.

We concluded that the search was supported by

probable cause, because the totality of the circumstances

the officer observed supported his belief that he had just

witnessed a street-level Ritalin transaction. Id. at 73. We

placed special significance on the fact that the defendant

jerked the item back into his pocket upon seeing the police

car, concluding that the “defendant’s attempt to conceal

something quickly in apparent response to the presence of

police[,] combined with the other factors[,] gave [the officer]

an objective basis to believe it more likely than not that

defendant was engaged in the illegal sale of a controlled

substance.” Id.

The state contends that the facts presented here

are analogous to those in Martin I and Green:

“In all three cases, police observed a furtive hand-to-hand

exchange between two people in a location known for high

180 State v. Lebanno

drug activity. Indeed, the facts here are even stronger

because in this case * * * Browning saw the exchange occur

through a specialized handshake that the officer recog-

nized as a common method of conducting street-level drug

transactions.”

The state distinguishes Jacobs, arguing that the furtive

hand-to-hand transfer of a small object in an area known for

drug activity is far more suspicious than the furtive transfer

of cash outside an ATM in an area that is not specifically

suspect.

Although we consider this a close case, we do not

agree that this case is more like Martin I and Green than

Jacobs. In both Martin I and Green, the officers were aware

of facts that supported an objectively reasonable inference

not only that they had witnessed a transaction, but that the

transfer was an illegal drug sale specifically. In Martin I,

the officer observed the defendant standing out on the street

corner, twice in a two-hour time span, late at night, when

there was no other apparent purpose for him to be there.

Considering that evidence in light of the defendant’s interac-

tion with the van and, significantly, the officer’s familiarity

with that street corner as a spot where crack was sold con-

tinuously, the Supreme Court concluded that it was reason-

able for the officer to believe that the defendant was proba-

bly dealing illegal drugs. Likewise, in Green, the defendant

attempted to transfer a pill-sized item for cash, 15 minutes

after he was observed with a known Ritalin dealer, at a

specific location where Ritalin was frequently sold, before

jerking the item back into his pocket upon noticing a police

car. Those facts allowed for a reasonable inference that the

attempted transfer was probably a Ritalin deal. In contrast,

here, Browning had no prior knowledge that defendant or

the individuals that he was with were drug users or dealers.

Defendant did not present cash to Cauley. Aside from the

men’s ambiguous handshake, Browning did not observe

any conduct that indicated they were drug users or dealers,

unlike the defendant’s repeated presence on a street cor-

ner where drugs were sold in Martin I or the defendant’s

interaction with a known drug dealer immediately before

the transfer in Green. Regardless, we do not rely on fact

matching in determining probable cause—instead, we must

Cite as 314 Or App 172 (2021) 181

determine its existence based on the totality of the circum-

stances in each case. Cf. State v. Senn, 145 Or App 538, 545,

930 P2d 874 (1996) (“[I]n many aspects of search and seizure

law, fact matching can be a fool’s errand.”).

“In the formation of probable cause, the stacking of

inferences to achieve probable cause is impermissible.” State

v. Goennier, 291 Or App 694, 699, 422 P3d 391, rev den, 363

Or 481 (2018) (internal quotation marks omitted); see also

State v. Kolb, 251 Or App 303, 313, 283 P3d 423 (2012) (“If

the premises collectively are impermissibly speculative, or

if any of the premises is individually insupportable, the stop

was not supported by reasonable suspicion.”). Here, although

Browning’s observations may support a reasonable infer-

ence that the two men had exchanged a small item when

they shook hands, any additional inference that the item

exchanged was illegal drugs requires stacking one inference

on top of another: first, that the men transferred something,

and, second, that that something was illegal narcotics. First,

this record contains no direct evidence that the men trans-

ferred anything—defendant was not observed holding the

item or reaching in his pocket after the men shook hands.

Instead, the officer inferred from the circumstances that

defendant accepted the item. That inference was reasonable

under the circumstances, considering Browning’s observa-

tion of a small item in Cauley’s hand immediately before the

handshake. But an additional inference that the small item

was illegal narcotics amounts to speculation.

We consider the specific factors cited by the state

that could potentially support probable cause, starting with

the location where defendant was observed. Although we

give due weight to Browning’s testimony that the specific

area under the Burnside Bridge was a “high drug and vice

area,” the interaction at issue in this case occurred mid-

morning in a popular downtown park that was open to the

public and the site of a variety of legitimate, legal uses. The

location here is not as strong a factor as the locations in

either Martin I or Green, and certainly cannot establish

probable cause in the absence of other compelling facts that

are particularized to defendant and indicate that an illegal

drug deal probably occurred. See, e.g., State v. Washington,

182 State v. Lebanno

284 Or App 454, 463-64, 392 P3d 348 (2017) (the fact that a

person is in a high-crime area does not support reasonable

suspicion; “the police must also identify particularized facts

about the defendant that support the inference that the

defendant’s presence at the location is indicative of criminal

activity”).

The remaining factors that could plausibly indi-

cate that the men exchanged illegal drugs are the size of

the item and the men’s furtive behavior. The size of the

item, alone, is not particularly meaningful to our analysis

without other evidence. That leaves the men’s handshake

and furtive behavior generally—the fact that Cauley looked

around to his left and right as he held the item, and the fact

that the men engaged in a handshake common to drug deals

that appeared to mask a transfer. Although that behavior

may have appeared suspect, it does not rise to the level of

establishing probable cause that the men exchanged ille-

gal drugs, either alone or when considered in conjunction

with the totality of the other circumstances. As we already

explained, Browning did not see the item or anything that

could have indicated to him that the item was drugs, absent

speculation. Although the men used a handshake common to

drug deals, the handshake is also “commonplace” in “every-

day socializing.” Further, Browning never saw defendant

give Cauley cash or anything else in return. And, despite

the fact that the men behaved in a way that indicated that

they did not want others to observe the item or what they

were doing, we have often explained that the furtive nature

of an interaction is relatively meaningless absent other indi-

cators that criminal activity is afoot. See, e.g., Jacobs, 187

Or App at 335 (“Mere furtiveness * * * does not establish

probable cause.”).

On balance, Browning observed two men acting

somewhat suspiciously, who apparently did not want others

to observe a small item in their possession, while out mid-

morning in an area of a downtown public park where vari-

ous kinds of legal and illegal activity were known to occur.

Those facts are insufficient to support defendant’s arrest for

illegal drug possession and are more analogous to Jacobs

than Martin I and Green. Like in Jacobs, an officer observed

furtive, suspicious behavior and an apparent transfer of

Cite as 314 Or App 172 (2021) 183

something in an area where drug traffic occurred. Although

there are distinctions between the facts of the two cases, our

end conclusion in Jacobs is nevertheless instructive here:

“They may well have looked as if they were trying to hide

what they were doing. But furtiveness in the act of engaging

in what may nevertheless be entirely lawful conduct does

not establish an objectively reasonable basis for a belief that

a crime has been committed.” Jacobs, 187 Or App at 336.

Although we do not decide whether the circumstances

known to Browning could have established reasonable sus-

picion to investigate further had the events unfolded dif-

ferently, our reasonable suspicion case law is somewhat

instructive. Recently, we decided State v. Hollins, 312 Or

App 682, 493 P3d 535 (2021). In Hollins, an officer observed

a woman and the defendant during the afternoon, in a park-

ing lot near several businesses and a bar called the Purple

Parrot. Id. at 683. The bar was known to the officer as a

place where criminal drug and weapons activity occurred,

and the officer “had arrested people for various offenses—

both inside and in the parking lot—about every other week.”

Id. The officer observed the two converse, engage in “some

sort of hand-to-hand transaction” that included a “shake or

a slap of hands,” and part ways. Id. at 683-84. The officer

had worked with the local drug task force and testified that

hand-to-hand drug deals often followed this exact pattern:

first the two converse, then there is “a shake of the hand

or a slap,” and then they part ways. Id. at 684. The offi-

cer approached the defendant and noticed cash in his hand.

Id.

Considering those facts, we concluded that the offi-

cer had reasonable suspicion to stop the defendant. Id. at

687. We distinguished Jacobs, noting that Jacobs involved

the heightened probable cause standard and less-compelling

facts, and reviewed past cases where similar hand-to-hand

transactions had met the lower reasonable suspicion stan-

dard. Id. at 687-89. Even though the transaction occurred

in “broad daylight,” in a parking lot near several different

businesses, and between people the officer did not know,

those factors did not diminish the officer’s reasonable suspi-

cion in light of the totality of the other circumstances. Id. at

689-91. In particular, we emphasized the officer’s detailed

184 State v. Lebanno

testimony that the interaction followed the exact pattern of

a typical illegal drug transaction. Id.

Hollins and the instant case illustrate the dis-

tinction between reasonable suspicion and probable cause.

When certain circumstances lead a police officer to suspect

that criminal activity is afoot, our law permits that officer

to investigate further, either through continued observation

or by stopping and questioning the individual. But in the

event that those investigations never reveal objective facts

indicating the probable occurrence of a specific crime, the

officer may not constitutionally arrest or search the indi-

vidual. Simply put, the interaction here “may have merited

continued observation, but it was insufficient to support an

arrest and all of the consequences—including handcuffing,

search, and jail—that can follow an arrest.” Martin II, 260

Or App at 479; see also State v. Daniels, 234 Or App 533,

538, 228 P3d 695, rev den, 349 Or 171 (2010) (“Probable

cause is a more rigorous standard than mere suspicion;

even a well-warranted suspicion does not suffice, because

a suspicion, no matter how well founded, does not rise to

the level of probable cause.” (Internal quotation marks omit-

ted.)). Because the totality of the circumstances known to

Browning did not establish probable cause that defendant

had just obtained illegal drugs from Cauley, the trial court

erred in denying defendant’s motion to suppress the physi-

cal evidence and statements obtained as a result of his war-

rantless arrest.

Lastly, as previously noted, defendant’s conviction

resulted from his conditional no-contest plea, reserving in

writing the right to appeal the trial court’s denial of his

motion to suppress, as permitted by ORS 135.335(3).

Pursuant to that authority, defendant may withdraw his

plea.3

Reversed and remanded.

3

“In appeals arising from conditional pleas under ORS 135.335(3), we have

consistently declined to engage in a harmless error analysis.” State v. Leach,

294 Or App 639, 646, 432 P3d 310 (2018). “Employing a harmless error analysis

would defeat [defendant’s] statutory right. Defendant may, on remand, decide

that [he] wishes to withdraw [his] plea and go to trial, or [he] may choose * * * not

to withdraw it.” State v. Dinsmore, 182 Or App 505, 519, 49 P3d 830 (2002).