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State v. Taylor

Court of Appeals of Oregon

November 21, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
NATHAN RICHARD TAYLOR, Defendant-Appellant.

          Argued and submitted October 5, 2018

          Columbia County Circuit Court 131059; Cathleen B. Callahan, Judge.

          Rond Chananudech, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Jacob Brown, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Defendant appeals a judgment revoking his probation and imposing a period of 36 months' incarceration as a revocation sanction. The parties agree that under OAR 213-010-0002(2), when a sentencing court revokes a departure term of probation, the maximum revocation sanction is the defendant's presumptive maximum. The count at issue-Count 4-has a maximum presumptive sentence of 18 months' incarceration-half that of the sanction term imposed. Defendant failed to object to the 36-month revocation sanction but asks the Court of Appeals to exercise its discretion to reach the issue as plain error.

         Held:

         OAR 213-010-0002 limits the revocation sanction to those that flow from the gridblock used at the time of sentencing. In this case, the maximum presumptive sentence was 18 months, thus the maximum allowable revocation sanction was 18 months' incarceration. The state conceded error and the court exercised its discretion to correct the error.

         [295 Or.App. 33] Reversed and remanded for resentencing; otherwise affirmed.

         [295 Or.App. 34] JAMES, J.

         Defendant appeals from a judgment revoking his probation and imposing a period of 36 months' incarceration as a revocation sanction. The parties agree that under OAR 213-010-0002(2), when a sentencing court revokes a departure term of probation, the maximum revocation sanction is the defendant's presumptive maximum. Defendant was categorized in the sentencing guidelines grid block as a 6F for Count 1, and a 6C for Count 4. As to Count 1 (6F), the presumptive sentence was probation and the maximum sanction upon revocation from a presumptive probationary sentence is six months. OAR 213-010-0002(1). As to Count 4 (6C), the maximum presumptive sentence is 18 months, and accordingly the maximum revocation sanction is 18 months. On appeal, defendant acknowledges that he failed to object to the 36-month revocation sanction, but asks us to exercise discretion to reach the issue as plain error. The state concedes the error, but argues that circumstances present in this case weigh against the exercise of discretion to correct the error. We exercise our discretion to correct the error, and, accordingly, reverse and remand.

         In April 2014, defendant pleaded guilty to two counts of third-degree assault and stipulated to several aggravating sentencing factors. The state asked the court to impose an upward dispositional departure sentence of 18 months' incarceration on Count 1, and a consecutive upward durational departure sentence of 27 months' incarceration on Count 4, for a total aggregate sentence of 45 months' incarceration. Defendant asked the sentencing court to "give[] him th[e] chance," or "carrot," of a probation sentence only, with the "stick" of a "prison sentence" "hanging over his head."

         The court determined that aggravating factors justified consecutive upward departure sentences of 18 months' incarceration on Count 1 and 36 months' incarceration on Count 4, for a total aggregate sentence of 54 months' incarceration. The court further determined, however, that defendant was amenable to treatment, and it imposed a probation sentence. However, the court indicated that defendant would serve "18 months [with Department of Corrections] [295 Or.App. 35] DOC if probation is revoked." On Count 4, the court specified "[d]efendant to ...


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