State v. Rickerd

¶1A jury found defendant guilty of sodomy in the first degree, ORS 163.405(l)(a), and sexual abuse in the first degree. ORS 163.425(l)(a).1 He appeals the 20-year determinate sentence imposed on the sodomy conviction.

¶2The state requested that the court sentence defendant as a dangerous offender under ORS 161.725 and order that the sentence be determinate under ORS 137.635(1). Defendant committed the crime before January 1,1990. The court specifically held that the “correct” sentencing grid blocks were not applicable, because the offenses were not subject to sentencing guidelines. It found that defendant was a dangerous offender subject to ORS 161.725 and that ORS 137.635 applied.

¶3On appeal, the state concedes that the sentence was based on ORS 137.635 and that that statute does not apply to crimes committed before January 1, 1990. The legal point is obvious and not reasonably in dispute and is, thus, an error apparent on the face of the record. ORAP 5.45(2); State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990). We address the error and accept the state’s concession, because defendant was substantially prejudiced when he was sentenced under a statute not yet in effect. State v. Gouveia, 116 Or App 86, 840 P2d 753 (1992).

¶4We reject defendant’s suggestion that we employ the “most convenient remedy” by simply deleting the word “determinate” from his sentence.

¶5Convictions affirmed; remanded for resentencing.