State v. Pemberton

¶1dissenting.

¶2The Court of Appeals is an error-correcting court. The trial court did not err in sentencing defendant to two concurrent 13-month terms of incarceration in a state correctional facility. Under ORS 163.165(2), the sentence was proper. Neither defendant nor the state cited OAR 213-008-0005(5) to the trial court or to this court. Nonetheless, the sentence to two concurrent 13-month terms of incarceration in a state correctional facility was proper under OAR 213-008-0005(5). Yet, the majority concludes that defendant’s sentence is erroneous and remands the case for resentencing. Because I conclude that the trial court did not err, I respectfully dissent.

¶3The issue in this case is whether, under ORS 163.165(2), the trial court’s imposition of a term of incarceration that exceeds 12 months was proper. ORS 163.165(2) *290directs a sentencing court to impose, upon conviction of a defendant under ORS 163.165(l)(i), “a term of incarceration in a state correction facility.” As both parties agree, confinement in a state correction facility requires a commitment to the custody of the Department of Corrections.

¶4ORS 137.124(2)(a) provides a mandate that a sentencing court must commit a defendant to a county facility when it imposes a term of incarceration that is 12 months or less. Conversely, under ORS 137.124(1), a sentencing court must commit a defendant to the Department of Corrections if it imposes a term of incarceration that exceeds 12 months.

¶5At trial, defendant argued that ORS 163.165(2) did not require the imposition of a sentence of any particular length of time. On appeal, defendant renews that same argument, relying on the lack of an express mandatory minimum sentence in ORS 163.165(2) and citing some of the legislative history regarding that statute. Defendant did not raise OAR 213-008-0005(5) at trial and does not raise it on appeal.

¶6But the majority, in reversing the trial court, relies on OAR 213-008-0005(5), which provides an exception to the general provision provided by ORS 137.124. OAR 213-008-0005(5) provides that “terms of incarceration 12 months or less imposed pursuant to ORS 163.165(2) shall be served in the legal and physical custody of the Department [of Corrections].” OAR 213-008-0005(4) provides that sentences of greater than 12 months shall be served in the legal and physical custody of the Department of Corrections. Thus, regardless of the length of sentence, defendant would serve his term of incarceration in the legal and physical custody of the Department of Corrections.

¶7OAR 213-008-0005(l)(c) authorizes a sentencing court to impose a departure sentence of up to 18 months for a defendant classified in grid blocks 5-F, 6-F through 6-1, and 7-F through 7-1. Defendant was classified in grid block 6-1. The trial court imposed a 13-month departure sentence pursuant to ORS 163.165(2). Because the trial court had statutory authority and administrative authority under the rules *291of the Oregon Criminal Justice Commission to impose that 13-month sentence, the trial court did not err.2

¶8Typically, this court considers the issues as framed by the parties’ arguments. Because we are an error-correcting court, we do not make arguments for the parties that they should have made but did not make. In reversing the trial court based on an administrative rule that was not cited to either the trial court or this court, we run afoul of our normal practice. Here, the trial court did not err in sentencing defendant to two concurrent 13-month terms of incarceration. Because the trial court did not err, there is no error for us to correct.

¶9For the above reasons, I respectfully dissent.