and submitted on November 19, 2015.
County Circuit Court 201303371; A156954 Cynthia D. Carlson,
Herb, Deputy Public Defender, argued the cause for appellant.
With her on the brief was Peter Gartlan, Chief Defender,
Office of Public Defense Services.
Timothy A. Sylwester, Assistant Attorney General, argued the
cause for respondent. On the brief were Ellen F. Rosenblum,
Attorney General, Anna M. Joyce, Solicitor General, and Jeff
J. Payne, Assistant Attorney General.
DeVore, Presiding Judge, and Garrett, Judge, and Duncan,
Judge pro tempore.[*]
for resentencing; otherwise affirmed.
appeals a judgment of conviction for multiple drug offenses.
He asserts, and the state concedes, that the trial court
plainly erred by imposing consecutive sentences that resulted
in a total incarceration term that violated the "200
percent rule, " OAR 2130120020 (2) (b). Held:
The trial court plainly erred by imposing consecutive
sentences in violation of the 200 percent rule, and
correction of the error is appropriate, given the gravity of
the error and the ends of justice.
for resentencing; otherwise affirmed.
DUNCAN, J. pro tempore.
appeals the trial court's judgment convicting and
sentencing him for multiple drug offenses. On appeal,
defendant asserts that the court committed plain error by
imposing consecutive sentences that resulted in a total
incarceration term that violated the "200 percent rule,
" which limits the total incarceration term for
consecutive sentences for crimes arising out of the same
criminal episode to 200 percent of the maximum presumptive
term for the primary offense, except by departure. OAR
213-012-OO2O(2)(b); State v. Miller, 317 Or. 297,
305, 855 P.2d 1093 (1993) (holding that the 200 percent rule
does not apply to convictions arising out of separate
criminal episodes); see also State v. Cuevas, 358
Or. 147, 154, 361 P.3d 581 (2015) (adhering to
Miller). At oral argument, the state conceded that
the court erred, that the error is plain, and that it is
appropriate for us to exercise our discretion to review the
error. We agree with the parties and, therefore, remand for
resentencing and otherwise affirm.
was charged with, and pleaded guilty to, seven drug
crimes. As relevant to the issue on appeal, the
trial court sentenced defendant to 65 months in prison on
Count 1; 36 months in prison on Count 4, to be served
consecutively to Count 1; and 36 months in prison on Count 5,
to be served consecutively to Count 4. Thus, the court
sentenced defendant to a total of 137 months in
prison.Defendant did not object to that total on
the ground that it violated the 200 percent rule.
appeal, defendant contends that the trial court plainly erred
by imposing a total of 137 months in prison. Defendant
asserts, and the state agrees, that defendant's primary
offense was Count 1 and that his sentencing grid block on
that count was 10H, which carries a presumptive [286 Or.App.
644] sentence of 61 to 65 months of incarceration. Therefore,
the total of the consecutive incarceration terms for crimes
arising out of the same criminal episode as Count 1 could not
exceed 130 months.
the parties disagreed about whether, as required for
defendant's plain-error argument to succeed, it is
apparent on the record that Counts 1, 4, and 5 arose out of
the same criminal episode. However, in a memorandum of
additional authorities filed after the briefing in this case,
defendant pointed out that the prosecutor had informed the
trial court at sentencing that the "shift-to-I"
rule, OAR 213-012-0020(2)(a), applied to defendant's
sentences on Count 2 through 7. Defendant also pointed out
that, like the 200 percent rule, the shift-to-I rule applies
only when crimes arise out of the same criminal episode.
Orchard v. Mills,247 Or.App. 355, 358, 270 P.3d 309
(2011), rev den,352 Or. 33 (2012). Thereafter, the
state conceded that, on this ...