303 ORAPP 161 - State v. Chavez-Reyes

                                  161

   Submitted February 24; remanded for resentencing, otherwise affirmed
                             March 18, 2020


                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
          FRANCISCO JAVIER CHAVEZ-REYES,
                 Defendant-Appellant.
            Washington County Circuit Court
                 17CR75366; A168101

459 P3d 963

Janelle F. Wipper, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
162 State v. Chavez-Reyes

PER CURIAM
Defendant appeals a judgment of conviction for
attempted second-degree assault with a firearm, ORS
163.175, ORS 161.405(2)(c); menacing, ORS 163.190; unlawful use of a weapon, ORS 166.220; and unlawful possession
of a firearm, ORS 166.250.
On appeal, he raises several challenges to his convictions, which we reject without discussion. He also asserts
that the trial court plainly erred when it imposed an indeterminate post-prison supervision term on his attempted
assault conviction. The state concedes that error. We agree
and accept that concession.
OAR 213-005-0002(4) provides that a “term of post-prison supervision, when added to the prison term, shall
not exceed the statutory maximum indeterminate sentence
for the crime of conviction.” In this case, the crime of conviction carried a maximum indeterminate sentence of five
years. ORS 161.605(3). OAR 213-005-0002(4) further provides that, “[w]hen the total duration of any sentence (prison
incarceration and post-prison supervision) exceeds the statutory maximum indeterminate sentence described in ORS
161.605, the sentencing judge shall first reduce the duration
of post-prison supervision to the extent necessary to conform the total sentence length to the statutory maximum.”
Here, the judgment provided that the post-prison supervision term was five years “minus time actually served pursuant to ORS 144.103.” As the parties note, this conviction
is not governed by ORS 144.103. As we explained in State
v. Stalder,

205 Or App 126, 132-33

133 P3d 920

, rev den,

340 Or 673

 (2006), OAR 213-005-0005 requires a sentencing
court to impose determinate sentences, including the post-prison supervision term. A post-prison supervision term
such as that imposed here is not determinate.
         Accordingly, for the reasons set forth in State v.
Burt,

272 Or App 171

353 P3d 1252

 (2015), we exercise our
discretion to correct the error.
        Remanded for resentencing; otherwise affirmed.