551
Submitted August 5; remanded for resentencing, otherwise affirmed
September 16, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
SIERRA MARIE SHOOP,
Defendant-Appellant.
Washington County Circuit Court
18CR55352; A169741
D. Charles Bailey, Jr., Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Sarah Laidlaw, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney General,
filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
552 State v. Shoop
PER CURIAM
Defendant appeals from a judgment of conviction
for attempted second-degree assault (Count 1), two counts
of failure to perform the duties of a driver to injured persons (Counts 2 and 5), and failure to perform the duties of a
driver for property damage (Count 8). Among other terms,
the trial court sentenced defendant to 36 months of prison
and 36 months of post-prison supervision (PPS) on Count 1
and imposed $5,496 in restitution. On appeal, defendant
challenges her sentence on Count 1 and the amount of restitution. We affirm without discussion the restitution award.
As to the challenge to PPS, defendant argues that
the trial court erred in imposing a sentence in violation of
OAR 213-005-0002(4), which provides that “[t]he term of
post-prison supervision, when added to the prison term,
shall not exceed the statutory maximum indeterminate
sentence for the crime of conviction.” Because the crime of
conviction for Count 1 is a Class C felony, ORS 161.405, the
maximum indeterminate sentence is five years (60 months),
ORS 161.605(3). Here, the court imposed a total sentence
of 72 months, which exceeds the statutory maximum.
Defendant acknowledges that she did not preserve her claim
of error, but requests that we review it as plain error and
exercise our discretion to correct it. The state concedes that
the court committed plain error.
We agree with the parties and accept the state’s
concession that the trial court plainly erred in imposing a
total sentence that exceeded 60 months on Count 1. See, e.g.,
State v. Weirson,
(2007)
(court plainly erred in imposing a prison term and PPS term
that totaled 63 months on a Class C felony). Additionally,
“[b]ecause the state has no valid interest in having defendant serve an unlawful sentence, we choose to exercise our
discretion to address the error.”
