Submitted: March 21, 2014.
10FE0378AB. Deschutes County Circuit Court. Michael C. Sullivan, Judge.
Peter Gartlan, Chief Defender, and Stephanie J. Hortsch, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeremy C. Rice, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Egan, Judge,and De Muniz, Senior Judge.
[270 Or.App. 432] EGAN,
Pursuant to plea negotiations, defendant pleaded no contest to the felony charge of unlawful use of a weapon, ORS 166.220, and the misdemeanor charges of strangulation, ORS 163.187, and menacing, ORS 163.190,
and the state moved to dismiss a charge of attempted murder, ORS 161.405; ORS 163.115. The court entered a judgment of conviction for the charges to which defendant pleaded and dismissed the final charge. For the felony conviction of unlawful use of a weapon, the court imposed a sentence of 60 months' imprisonment and 36 months' post-prison supervision (PPS). The court imposed PPS on the misdemeanor convictions and a no-contact order during the term of PPS on each of the three convictions. Defendant appealed that judgment of conviction, and we affirmed without opinion. State v. Larrance, 249 Or.App. 334, 278 P.3d 141 (2012). Defendant then filed a pro se motion in the trial court to modify the judgment under ORS 138.083(1)(a), arguing that the terms in the judgment were erroneous because (1) the felony sentence exceeded the statutory maximum and was unlawfully indeterminate; (2) the court lacked authority to impose PPS on misdemeanor convictions; and (3) the court lacked authority to impose conditions of PPS on all convictions. Following a hearing, the court modified the judgment to remove the PPS terms from the misdemeanor convictions, but left the other terms intact. Defendant now appeals the amended judgment, arguing that the court abused its discretion when it declined to correct all of the purportedly erroneous terms contained in the original judgment. The state argues that, regardless of whether the terms of the judgment are unlawful, the trial court did not abuse its discretion when it declined to correct the purported errors. We conclude that the trial court abused its discretion, vacate the amended judgment, and remand to the trial court for further consideration of the matter.
[270 Or.App. 433] We review a trial court's determination whether to correct a judgment of conviction under ORS 138.083 for abuse of discretion. State v. Engerseth, 255 Or.App. 765, 768 n 4, 299 P.3d 567, rev den, 353 Or. 868, 306 P.3d 640 (2013). With that standard in mind, we turn to the facts, which are procedural and undisputed.
As noted, defendant pleaded no contest to certain charges following plea negotiations. Defendant and the state did not memorialize the terms of the plea agreement before the sentencing hearing. Instead, the parties agreed to state the terms of the agreement on the record. While doing so, defense counsel stated:
" We understand that [the charge of unlawful use of a weapon] is subjected to [ORS] 161.610; the 60 months. We're in agreement that [defendant] would be sentenced in accordance with that statute, which allows for good time."
After the parties stated the terms of the agreement, which included no discussion of PPS, the court accepted defendant's plea and imposed a sentence of 60 months' imprisonment and 36 months' PPS for the conviction of unlawful use of a weapon, which is a Class C felony with a maximum indeterminate sentence of 60 months. ORS 161.605(3). The court provided that defendant was eligible for " earned good time credit" on that sentence. The court also inserted a qualification into the judgment stating that " post[-]prison supervision plus time served, shall not exceed 60 months." When the court inserted that qualification into the judgment, the following exchanged occurred:
" THE COURT: Okay. So--and what about post-prison supervision? Because I can't give a sentence that's longer--let me just ask: If it's 60 months, and I know that he's going to get some time off, he's going to get 20 percent off, I can say--I can say 36 months, but post-prison supervision will be reduced by--will be no longer than the time actually served, plus whatever it is not to exceed 60 months.
" [PROSECUTOR]: That's fine with the State, Your Honor.
" [DEFENSE COUNSEL]: I agree.
" THE COURT: Do you agree with that, [defense ...