461
Submitted October 1; remanded for resentencing, otherwise affirmed
December 15, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
DIONICII BASARGIN,
Defendant-Appellant.
Marion County Circuit Court
19CR82158; A174265
Courtland Geyer, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen E. Daniels, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, Robert M. Wilsey, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
462 State v. Basargin
PER CURIAM
Defendant asserts on appeal that the trial court erroneously relied on two Alaska convictions for fourth-degree
assault to classify his criminal history score as Category B.
In defendant’s view, the Alaska fourth-degree assault statute
that he violated in 2001 and 2006 has been construed more
broadly than this state’s fourth-degree assault statute, ORS
163.160, and, because neither the accusatory instruments
nor the judgments for the Alaska convictions demonstrated
that the convictions matched the elements of the Oregon
offense, the trial could not consider them when it classified
defendant’s criminal history. See State v. Tapp,
(1991) (to rely on an out-of-state conviction in calculating a defendant’s criminal history score, the
state must demonstrate that the elements of the out-of-state
offense would have constituted a felony or Class A misdemeanor under Oregon law); State v. Provencio,
(1998) (“[I]t was incumbent on the state
to demonstrate by way of the accusation instrument and the
judgment that defendant’s [out-of-state] conviction in fact
matched the elements of the Oregon offense[.]”). The state
concedes the error; we agree and accept the concession. We
therefore remand for resentencing.
Remanded for resentencing; otherwise affirmed.
