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State v. Allen

Court of Appeals of Oregon

May 24, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
TERRY LEE ALLEN, Defendant-Appellant.

          Submitted March 29, 2017

         Deschutes County Circuit Court 13FE0344; A. Michael Adler, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erica Herb, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.

         Case Summary:

         Defendant, who was convicted of attempted murder, second-degree assault, unlawful use of a weapon, and coercion, contends on appeal that the trial court plainly erred in imposing 60-month firearm minimum sentences under ORS 161.610(4)(a) on two of his convictions. The state concedes that the court plainly erred because only one 60-month firearm minimum sentence can be imposed under ORS 161.610(4) when a single trial results in convictions for more than one felony in which a firearm was used or threatened to be used. Nevertheless, the state contends that defendant was not prejudiced by the error so it is not appropriate to exercise discretion to correct the plain error.

         Held:

         The trial court committed plain error by imposing two firearm minimum sentences under ORS 161.610(4)(a), but, given that the error did not prejudice defendant, exercising discretion to correct the error is not warranted. Given the way the trial court sentenced defendant, a remand to correct the error would not alter defendant's total aggregate sentence, and contrary to defendant's suggestion, the error does not subject defendant to a potentially harsher sentence in the future if he commits another crime that is subject to a firearm minimum sentence under ORS 161.610(4).

         Affirmed.

         [285 Or.App. 668] ORTEGA, P. J.

         Defendant was convicted of attempted murder, second-degree assault, unlawful use of a weapon (UUW), and coercion based on an incident involving the use of a firearm The trial court imposed a 90-month mandatory minimum sentence for attempted murder under ORS 137.700 (2)(a)(C), a 70-month mandatory minimum sentence for second-degree assault under ORS 137.700 (2)(a)(G), and, for the UUW and coercion convictions, two 60-month mandatory minimum sentences under ORS 161.610(4)(a) for using a firearm during the commission of those crimes.[1] The court ordered the sentences for second-degree assault, UUW, and coercion to be served concurrently with the 90-month mandatory minimum sentence for attempted murder.

         On appeal, defendant raises three assignments of error. We reject the first two without written discussion, and write to address defendant's third assignment of error, which contends that the trial court plainly erred in imposing a 60-month firearm minimum sentence under ORS 161.610(4)(a) for more than one of defendant's convictions. Although we agree that the court plainly erred in doing so, we decline to exercise our discretion to correct the error because defendant was not prejudiced by it. Accordingly, we affirm.

         The state concedes that the trial court plainly erred in imposing two firearm minimum sentences in this case, and that concession is well-taken. See State v. Hardesty, 298 Or. 616, 619, 695 P.2d 569 (1985) (holding that only one 60-month mandatory minimum sentence can be imposed under ORS 161.610 when a single trial results in convictions for more than one felony in which a firearm was used or threatened to be used). Nonetheless, the state argues that we should decline to exercise our discretion to correct the error because, ...


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