State v. Deck

¶1Under a plea agreement, defendant pleaded guilty to burglary in the first degree and attempted rape in the first degree. In a separate proceeding, he pleaded guilty to sexual abuse in the third degree. Two separate judgments were entered, but the convictions were consolidated for sentencing. On the burglary conviction,1 the trial court imposed an 80-month upward-departure incarceration term “subject to ORS 137.635.”

¶2The state concedes that the trial court erred in imposing the upward-departure sentence, because defendant had not been convicted of any felony designated in the applicable subsection of ORS 137.635. We accept the concession.

¶3Convictions affirmed; remanded for resentencing.