State v. Peterson

                                  282

Submitted December 22, 2021; remanded for resentencing, otherwise affirmed
                            January 26, 2022


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
               DEVON ANDREW PETERSON,
                    Defendant-Appellant.
               Multnomah County Circuit Court
                    19CR48649; A172842
                               

   Katharine von Ter Stegge, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel C. Bennett, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patricia G. Rincon, 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.
Cite as 

 (2022)                            283

        PER CURIAM
         Defendant appeals from a judgment of conviction
for one count of coercion constituting domestic violence
(Count 1), two counts of fourth-degree assault constituting
domestic violence (Counts 2 and 4), and one count of seconddegree criminal mischief (Count 6). We write to address only
defendant’s third assignment of error and reject without
discussion defendant’s remaining assignments of error. In
his third assignment, defendant challenges the trial court’s
imposition of an upward durational departure sentence on
Count 1. The state concedes the error. We agree that the
trial court erred, accept the state’s concession, and remand
for resentencing.
         At sentencing, the trial court determined that defendant was in sentencing grid block 7-I, which carries a presumptive sentence of three years of probation. The state
asked for an upward durational departure sentence of five
years of probation on each count. Defendant asked the court
to impose the presumptive sentence, stating that it was
required, because the state had not filed a departure notice
and did not argue departure facts. For Count 1, the court
imposed an upward durational departure sentence of five
years of probation. The court imposed concurrent sentences
for the remaining counts of three years of probation. In the
judgment, the court described the basis for the departure
sentence on Count 1 as “Stipulation of Parties.”
         On appeal, defendant argues that the court erred
in imposing a departure sentence, because the court did not
state the reasons for the departure at the time of sentencing, the jury did not find any departure facts, and defendant
did not waive his right to a jury to determine those facts.
The state concedes on appeal that the parties did not stipulate to a departure sentence and that the court erred in
imposing an upward durational departure sentence without
stating the reasons on the record, as required by OAR 213-
008-0001. We agree with and accept the state’s concession.
Because the trial court erred in imposing the departure sentence, we remand for resentencing. See State v. Dimmick,

, 

 (2012) (remanding for
resentencing on state’s concession that the trial court erred
284                                       State v. Peterson

in imposing an upward durational departure sentence without making the required findings). Given our disposition, we
need not address defendant’s other arguments raised in his
third assignment of error, which are unpreserved and better
directed to the trial court on remand.
        Remanded for resentencing; otherwise affirmed.