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State v. West-Howell

Court of Appeals of Oregon

February 12, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
ANTHONY ALLEN WEST-HOWELL, Defendant-Appellant

Argued and Submitted December 30, 2013

Marion County Circuit Court. 11C47990. Claudia M. Burton, Judge.

Morgen E. Daniels, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Michael Seung Moak Shin, Senior Assistant Attorney General, argued the cause for respondent. On the answering brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General.

Before Wollheim, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.

OPINION

[261 Or.App. 116] PER CURIAM

Defendant was convicted of multiple sexual offenses, including two counts of first-degree sodomy (Counts 2 and 5) and one count of attempted first-degree rape (Count 4). Among other things, the court imposed consecutive sentences on Counts 2 and 4. On appeal, defendant argues that, in calculating

Page 336

the presumptive term for the consecutive sentence on Count 4, the trial court did not shift to Column I, as required by OAR 213-012-0020(2)(a)(B). Defendant acknowledges that he did not raise that issue below, but he urges us to review and correct what is a plain error.

The state concedes that the trial court erred in failing to shift to Column I, and that the case must be remanded for resentencing on that ground. See State v. Monro, 256 Or.App. 493, 496-97, 301 P.3d 435, rev den, 354 Ore. 148, 311 P.3d 525 (2013) (" We have previously considered error in failing to apply the 'shift to column I' rule to be plain error * * *." ). We agree with the state, accept the concession, and, for the reasons summarized in Monro, 256 Or.App. at 497, exercise our discretion to correct the error.[1]

Remanded for resentencing; otherwise affirmed.


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