Submitted February 24, 2015.
080733420. Multnomah County Circuit Court. Michael J. McShane, Judge.
Peter Gartlan, Chief Defender, and Daniel C. Bennett, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Timothy A. Sylwester, Senior Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[271 Or.App. 273] ARMSTRONG, P. J.
Defendant appeals a judgment revoking his probation on his conviction for attempted second-degree assault and imposing a 48-month prison term and a 36-month term of post-prison supervision. He contends that the revocation sanction that the court imposed is unlawful because it exceeds the maximum indeterminate sentence that can be imposed for a conviction for attempted second-degree assault. Defendant acknowledges that he did not preserve his claim of error but asks us to review it under ORAP 5.45(1) as plain error. We agree with defendant that the error is plain, exercise our discretion to correct the error, and remand for imposition of a probation-revocation sanction consistent with this opinion.
Defendant pleaded no contest to attempted first-degree robbery and attempted second-degree assault. The trial court imposed a 60-month prison sentence for the attempted-robbery conviction and a 60-month probationary sentence for the attempted-assault conviction. Four years later, after defendant had completed his prison sentence on the attempted-robbery conviction, the court revoked defendant's probation on the attempted-assault conviction and imposed a 48-month prison term and a 36-month term of post-prison supervision for the conviction.
Defendant appeals the judgment revoking his probation. He notes that attempted second-degree assault is a Class C felony and that the statutory maximum indeterminate sentence for a Class C felony is 60 months. He contends, therefore, that the probation-revocation sanction that the court imposed--viz., 84 months of combined incarceration and post-prison supervision--conflicts with OAR 213-005-0002(4), [271 Or.App. 274] which provides that the duration of the combined terms of incarceration and post-prison supervision may not exceed the statutory maximum indeterminate sentence for the crime of conviction, here, attempted second-degree assault. He concedes
that he did not preserve his claim of error in the trial court but asks us to review it under ORAP 5.45(1) as plain error.
The state concedes that the trial court erred. However, the state questions whether ORS 138.053(1)(e) or any other statute gives us jurisdiction of defendant's appeal. The state notes that we have held in several recent cases that the imposition of a penalty on the revocation of probation constitutes the imposition of a sanction rather than a sentence. See, e.g., State v. Patterson, 269 Or.App. 226, 234-37, 344 P.3d 497 (2015). The state reasons, therefore, that ORS 138.053(1)(e) does not give us jurisdiction of ...