State v. Kragt

                                   537

Argued and submitted May 6, vacated and remanded June 3, petition for review
                  allowed September 17, 2020 (

)
                      See later issue Oregon Reports


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                    RANDALL JAY KRAGT,
                     Defendant-Appellant.
                  Yamhill County Circuit Court
                       CR99474; A168649
                                

   John L. Collins, Judge.
   Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
   PER CURIAM
   Vacated and remanded.
538                                              State v. Kragt

        PER CURIAM
         Defendant appeals an amended judgment of conviction for three counts of first-degree sodomy entered after a
remand from this court in a prior appeal. See State v. Kragt,

, 

 (2018). All of defendant’s convictions are for sex offenses subject to the post-prison supervision (PPS) requirements of ORS 144.103. At issue are the
terms of PPS imposed on each count. The trial court imposed
180 months’ PPS on the first count and 140 months’ PPS on
each of the two remaining counts. Defendant contends that
these terms of PPS are erroneous in two respects. One of
defendant’s arguments is foreclosed by our case law, but the
other is one on which defendant is entitled to relief.
         For one, defendant argues that ORS 144.103 required
the trial court to impose a single unified term of PPS, rather
than separate terms on each conviction. As defendant
acknowledges, that is a contention we previously rejected in
Norris v. Board of Parole, 

, 

 (2010),
rev den, 

 (2011), and Delavega v. Board of Parole,

, 

 (2008), and we are not persuaded that we should overrule that line of authority.
        Defendant also contends that the trial court erred
by imposing determinate terms of PPS. That is because, for
certain sex offenses subject to ORS 144.103, including the
offenses committed by defendant, ORS 144.103 requires the
imposition of an indeterminate term of PPS, to be computed
by the Board of Parole and Post-Prison Supervision once the
amount of time a defendant actually spent incarcerated is
known:
   “Except as otherwise provided in ORS 137.765 and subsection (2) of this section, any person sentenced to a term
   of imprisonment for [committing or attempting to commit
   specified sex offenses] shall serve a term of active post-prison supervision that continues until the term of the
   post-prison supervision, when added to the term of imprisonment served, equals the maximum statutory indeterminate sentence for the violation.”
ORS 144.103(1); see also State v. Burch, 

, 

 (1995) (explaining the nature of the PPS
term required under ORS 144.103). The state concedes that
Cite as 

 (2020)                             539

the terms of PPS imposed by the trial court should have
been indeterminate under ORS 144.103(1), but argues that
we should not correct any error because, in the state’s view,
the determinate terms imposed do not prejudice defendant
because, if anything, they might be too short.
         We are not persuaded by the state’s harmlessness
argument. In view of ORS 144.103(1), the trial court lacked
authority to impose determinate terms of PPS; it only had
the authority to impose indeterminate terms. Where a judgment contains a provision that the trial court lacked authority to impose, we long have reversed and remanded for entry
of a judgment that comports with the trial court’s scope of
authority. See, e.g., State v. Potter, 

, 

 (1991) (vacating term of judgment addressing conditions of incarceration, because trial courts lack authority
to impose conditions of incarceration). In other words, being
subject to a judgment term that a trial court lacked the
authority to impose is a cognizable harm to a defendant. We
therefore vacate and remand for the trial court to enter a
judgment that comports with ORS 144.103.
        Vacated and remanded.