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State v. Burt

Court of Appeals of Oregon

July 1, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
DARREN MITCHELL BURT, Defendant-Appellant

Submitted May 19, 2015.

121098. Tillamook County Circuit Court. Mari Garric Trevino, Judge.

Peter Gartlan, Chief Defender, and Ernest G. Lannet, Chief Deputy Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.

Before Sercombe, Presiding Judge, and Tookey, Judge, and Edmonds, Senior Judge.

OPINION

Page 1253

[272 Or.App. 172] PER CURIAM

Defendant appeals a judgment convicting him of second-degree assault, ORS 163.175, and fourth-degree assault, ORS 163.160. On appeal, defendant raises two assignments of error. We reject without discussion his second assignment, in which he contends that the trial court erred " when it denied defendant's request that the court instruct the jury that its verdict must be unanimous." In his first assignment of error, defendant contends that the trial court plainly erred when it imposed a sentence on the second-degree assault conviction of 120 months in prison followed by 36 months of post-prison supervision (PPS), but ordered that the PPS term be reduced by the time " actually served."

According to defendant, " the term of PPS, combined with the term of incarceration, places the sentence imposed by the trial court in excess of the statutory maximum ten-year sentence for a Class B felony." See ORS 161.605(2) (statutory maximum sentence for Class B felony is 10 years); OAR 213-005-0002(4) (" The term of post-prison supervision, when added to the prison term, shall not exceed the statutory maximum indeterminate sentence for the crime of conviction." ). Defendant also contends that the sentence is unlawfully indeterminate. See OAR 213-005-0005 (the judgment of conviction for each offense shall " state the length of incarceration and the length of post-prison supervision" ); State v. Stalder, 205 Or.App. 126, 132, 133 P.3d 920, rev den, 340 Or. 673, 136 P.3d 743 (2006) (the rule requires that " a judgment of conviction state a definite sentence" ). The state concedes that, under Stalder and State v. Mitchell, 236 Or.App. 248, 235 P.3d 725 (2010), the trial court plainly erred in imposing the sentence on the second-degree assault conviction.

We agree and accept the state's concession. Furthermore, in light of the gravity of the error, the interests of the parties, and the ends of justice, we conclude that it is appropriate to exercise our discretion to remedy the error. See Ailes v. Portland Meadows, Inc., 312 Or. 376, 382 n 6, 823 P.2d 956 (1991); State v. Gutierrez, 243 Or.App. 285, 288, 259 P.3d 951 (2011) (exercising discretion under similar circumstances).

Remanded for resentencing; otherwise affirmed.


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