State v. Ulery

                                  480

 Submitted September 3; reversed and remanded for resentencing, otherwise
                        affirmed October 27, 2021


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                   ADRIAN JAMES ULERY,
                     Defendant-Appellant.
                   Polk County Circuit Court
                     17CR79026; A174500
                               

  Monte S. Campbell, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kali Montague, 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 Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
  PER CURIAM
   Reversed and remanded for resentencing; otherwise
affirmed.
Cite as 

 (2021)                              481

         PER CURIAM
         After defendant was convicted by a nonunanimous
jury on two counts of first-degree sexual abuse, the Supreme
Court reversed the convictions under Ramos v. Louisiana,

, 

, 

 (2020), and
remanded the case to the trial court. State v. Ulery, 

, 

 (2020). On remand, defendant and
the state entered a plea deal, under which defendant agreed
to plead guilty to the lesser-included offense of attempted
first-degree sexual abuse on one of the counts, and the
state agreed to dismiss the other count. Defendant and the
state also stipulated to an upward departure sentence of 60
months’ incarceration. And they agreed that, at the hearing
on the plea, the issue was whether defendant “should get
good time and earned time credit and those things or not.”
         Sixty months—five years—is the statutory maximum
sentence for a conviction for defendant’s offense of conviction,
a Class C felony. See ORS 163.427(2); ORS 161.405(2)(c); ORS
161.605(3). The trial court nonetheless imposed a five-year
term of post-prison supervision (PPS), making defendant’s
total sentence 10 years, five years more than allowed under
law. On appeal, defendant—who did not raise the issue
below—contends that the court plainly erred in imposing a
too-long sentence, and that we should reverse and remand
for resentencing. The state concedes the error, but argues
that the remedy, should we exercise our discretion to correct the error, should be a “remand for resentencing with
instructions to vacate the 60-month PPS term.”
         We exercise our discretion to correct the error and
reverse and remand for resentencing. In so doing, we note
that the discussions on the record reflect that all parties contemplated that defendant would serve a term of PPS in addition to the stipulated term of incarceration, and did not seem
cognizant of the fact that that would result in a sentence that
exceeded the applicable statutory maximum for a Class C felony. We leave it to the trial court and the parties in the first
instance to ascertain a sentence that comports with both the
parties’ agreement and the legal limitations on sentencing.
         Reversed and remanded for resentencing; otherwise affirmed.