Submitted December 7, 2018
Clackamas County Circuit Court 16CR29324; Eve L. Miller,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Daniel C. Bennett, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Adam Holbrook, Assistant Attorney General, fled
the brief for respondent.
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
for resentencing; otherwise affirmed.
Or.App. 838] PER CURIAM.
appeals a judgment of conviction for five counts of
first-degree sexual abuse. Defendant challenges his sentence,
arguing that the trial court plainly erred in basing its
sentencing decision, in part, on defendant's exercise of
his right to a trial. The state concedes that the trial court
plainly erred. We agree, accept the state's concession,
and remand for resentencing; we otherwise affirm.
was indicted on 10 counts of first-degree sexual abuse of
defendant's two daughters. Defendant waived a jury trial
and his case was tried to the court. The court convicted
defendant of five of those counts. During sentencing, in
considering whether to order consecutive terms of
incarceration, the trial court stated:
"[T]he fact that you did put your daughters through
additional trauma by forcing them to take the witness stand,
and, obviously, they were traumatized by it. And at no time
did you seem to want to-to save them from having to be
traumatized further, it does bear some weight on the Judgment
that I'm going to render and the sentence I'm going
"And I say that not to punish you for exercising your
right to a jury trial but to, I guess, point out that it
reflects a rather calloused and narcissistic view that this
is about you and not about somebody you've caused harm
"So I've gone back and forth. Initially it appeared
to me that one 75-month sentence for each of the children,
and have them run consecutive would be significant and
sufficient. So I just want to spend a moment reflecting on
whether I make a third one consecutive or in part consecutive
court then sentenced defendant to 75 months of incarceration
on each of Counts 1 and 2 to run concurrently, 75 months on
Count 5 to run consecutive to Count 1, 75 months on Count 7
to run consecutive to Count 5 for 25 months, and 75 months on
Count 10 to run concurrently to all other counts, for a total
of 175 months.
appeal, defendant argues that the trial court plainly erred
by imposing a sentence based, in part, on the [295 Or.App.
839] improper consideration that defendant had exercised his
right to trial. The state concedes that the trial court
plainly erred when it stated that defendant's decision to
go to trial and require his daughters to testify would
"bear some weight" on its sentencing decision,
because that statement "improperly created an inference