State v. Blitch

                                  266

     Submitted May 29; remanded for resentencing, otherwise affirmed
                           October 14, 2020


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                  JAMES ROBERT BLITCH,
                     Defendant-Appellant.
                  Baker County Circuit Court
                    18CR32691; A168869
                              

   Gregory L. Baxter, Judge. (Judgment)
   Russell B. West, Senior Judge. (Amended Judgment)
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Kistler, Senior Judge.
   PER CURIAM
   Remanded for resentencing; otherwise affirmed.
Cite as 

 (2020)                           267

        PER CURIAM
         Defendant appeals a judgment convicting him of
coercion and fourth-degree assault. Defendant raises two
assignments of error. We reject without written discussion defendant’s first assignment, in which he asserts that
the trial court erred in denying his motion for judgments
of acquittal. As for defendant’s second assignment, defendant contends that the sentence that the trial court imposed
constitutes plain error. ORAP 5.45(1). Defendant argues
that the 36-month post-prison supervision (PPS) term
imposed on his 31-month prison term for coercion exceeds
the statutory maximum: Coercion is a Class C felony (ORS
163.275(2)) that has a maximum indeterminate sentence of
five years (ORS 161.605(3)), and defendant’s total sentence
of 67 months exceeds that maximum sentence length by
seven months. See OAR 213-005-0002(4) (“The term of post-prison supervision, when added to the prison term, shall
not exceed the statutory maximum indeterminate sentence
for the crime of conviction.”). The state concedes that the
trial court committed plain error by imposing a PPS term
that, when combined with defendant’s prison term, exceeds
the statutory maximum sentence for the coercion conviction. We agree and accept the state’s concession. Further,
because the gravity of the error to defendant—seven months
of unlawfully excessive PPS—is significant, we exercise our
discretion to correct the error.
        Remanded for resentencing; otherwise affirmed.