312 ORAPP 263 - State v. Laird

                                  263

    Submitted April 30; remanded for resentencing, otherwise affirmed
                             June 9, 2021


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                  GARY DUANE LAIRD,
                   Defendant-Appellant.
              Multnomah County Circuit Court
                   18CR05891; A170577

487 P3d 878

Gregory F. Silver, Judge.
Ryan T. O’Connor and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, and Powers, Judge, and
Hadlock, Judge pro tempore.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
264 State v. Laird

PER CURIAM
In this criminal case, defendant appeals from a judgment convicting him of strangulation constituting domestic violence, ORS 163.187; unlawful use of a weapon with
a firearm, ORS 166.220; second-degree assault constituting
domestic violence, ORS 163.175; and fourth-degree assault
constituting domestic violence, ORS 163.160. The trial court
imposed an aggregate prison sentence of 130 months consecutive to a previously imposed sentence arising out of a
case in Clackamas County Circuit Court. More specifically,
as part of that 130-month aggregate sentence, the court
imposed a five-year gun-minimum sentence under ORS
161.610 on the unlawful use of a weapon-firearm conviction.
On appeal, defendant raises eight assignments of
error, and we reject all but one of those assignments without discussion. In his eighth assignment of error, defendant
contends that the trial court plainly erred when it imposed
a five-year gun minimum under ORS 161.610.1 Recognizing
that defendant previously was convicted of a qualifying felony in Clackamas County, the state concedes that the trial
court plainly erred in imposing a second gun-minimum
sentence. We agree, accept the state’s concession, and exercise our discretion to correct the error. See State v. Wells,

82 Or App 283, 286

728 P2d 533

 (1986) (explaining that,
under a prior version of ORS 161.610, the trial court “had no
authority to impose a second five-year minimum sentence”
in Marion County after the defendant had already received
a five-year gun-minimum sentence in Polk County); see also
State v. Birchard (A62487),

105 Or App 400, 401

804 P2d 1224

, rev den,

311 Or 427

 (1991) (holding that the trial court
plainly erred by imposing a gun-minimum sentence in violation of ORS 161.610 and exercising discretion to correct it).
          Remanded for resentencing; otherwise affirmed.
    1
     ORS 161.610 provides, in part:
        “(4) The minimum terms of imprisonment for felonies having as an element the defendant’s use or threatened use of a firearm in the commission of
   the crime shall be as follows:
        “(a) Except as provided in subsection (5) of this section, upon the first conviction for such felony, five years, except that if the firearm is a machine gun,
   short-barreled rifle, short-barreled shotgun or is equipped with a firearms
   silencer, the term of imprisonment shall be 10 years.”
(Emphasis added.)