Argued and Submitted November 10, 2014.
C092508CR. Washington County Circuit Court. James Lee Fun, Jr., Judge.
Kyle Krohn, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jamie K. Contreras, Assistant Attorney-in-Charge, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[268 Or.App. 126] SERCOMBE, P. J.
Following a guilty plea, defendant was convicted of felony assault in the fourth degree, ORS 163.160 (Count 2), and interference with making a report, ORS 165.572 (Count 3). The court sentenced defendant to three years of probation on Count 2, and suspended imposition of sentence and imposed three years of probation on Count 3. Defendant later violated the terms of his probation. The court continued probation on Count 2, and purportedly imposed, but suspended execution of, a 120-day jail sentence as a condition of continued probation on Count 3. Still later, defendant was sentenced to jail after his probation was revoked because of new admitted violations.
In that sentencing judgment, defendant was sentenced to one year in jail on Count 3, and given a concurrent sentence of six months in jail and two years of post-prison supervision on Count 2. On appeal, defendant contends that the court plainly erred in sentencing him to a longer term of incarceration on Count 3 (one year) than was imposed but suspended (120 days) in the judgment that continued probation. The state claims that any error is not plain because it is not clear if the court imposed but then suspended execution of the 120-day sentence in that judgment.
" We review a claim that the sentencing court failed to comply with the requirements of law in imposing a sentence for errors of law." State v. Capri, 248 Or.App. 391, 394, 273 P.3d 290 (2012); ORS 138.222(4)(a). Because we conclude that the court plainly erred in sentencing defendant to a jail term on Count 3 that was longer than the sentence previously imposed, and that it is appropriate to exercise our discretion to remedy that error in this case, we reverse and remand.
The background facts are undisputed. Defendant was indicted for various crimes arising from domestic violence against his wife (the victim). He pleaded guilty to felony assault in the fourth degree (Count 2) and misdemeanor interference with making a report (Count 3), and the remaining charges against him were dismissed. On December 1, 2009, the trial court sentenced defendant to the presumptive sentence of three years of probation on Count 2, [268 Or.App. 127] and suspended imposition of the sentence on Count 3 with three years of probation. One of the conditions of probation was that defendant have no direct or indirect contact with the victim.
At a hearing on September 9, 2010, the court found defendant in violation of that " no contact" condition of probation. At the same time, defendant was determined to have violated a restraining order obtained by the victim after the December 2009 conviction. The state recommended that defendant be placed on probation for the restraining order violation, and that he serve 10 days in jail for the probation violation. The court rejected that recommendation. It explained:
" On Count 3, I'm going to give him his final sentence. 120 days suspended execution, all alternative sanctions.
" So, in English, you come back with a contact violation, you're very, very lucky, you have 120 days minimum. And it could be ...