State v. Nedelic

                                    70

Submitted April 29; portion of judgment denying AIP programming under ORS
  421.508(4) vacated, remanded for resentencing, otherwise affirmed June 2;
          petition for review denied November 3, 2022 (

)


                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                      GLEEN NEDELIC,
                     Defendant-Appellant.
                  Marion County Circuit Court
                     18CR60066; A172433
                               

   Courtland Geyer, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Anne Fujita Munsey, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Shannon T. Reel, Assistant Attorney
General, filed the brief for respondent.
   Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
   PER CURIAM
   Portion of judgment denying AIP programming under
ORS 421.508(4) vacated; remanded for resentencing; otherwise affirmed.
Cite as 

 (2022)                               71

        PER CURIAM
         Defendant appeals from a judgment of conviction
and sentence for attempted murder, ORS 161.405 and ORS
163.115 (Count 1), assault in the first degree, ORS 163.185
(Count 2), and unlawful use of a weapon, ORS 166.220
(Count 3), raising five assignments of error. We reject without discussion the first through the fourth assignments and
write only to address his fifth. There, defendant argues that
the trial court erred in stating in the judgment of conviction
that defendant was not eligible for alternative incarceration
programs (AIP) after the court announced during the sentencing hearing that defendant would be eligible for those
programs. The state concedes the error, and that concession
is well-taken.
         The sentencing court stated at sentencing that it
intended to make defendant eligible for alternate incarceration programs after he served the first 90 months of his
sentence on Count 2 and did not express an intent to make
defendant ineligible for release on post-prison supervision
upon successful completion of such a program. However, the
court provided in the judgment that defendant “may be eligible for all programming after 90 months,” but also stated
that defendant “may not be considered for release on post-prison supervision under ORS 421.508(4) upon successful
completion of an alternative incarceration program.”
         Either the written judgment does not accurately
reflect the court’s stated intent, or the term was modified
outside the presence of defendant. In either case, the parties
are in agreement that the appropriate remedy is to vacate
that portion of defendant’s sentence and remand for resentencing. State v. Baccaro, 

, 

(2019) (vacating portion of criminal judgment requiring payment of bench probation fee that was not announced as part
of sentence in open court and remanding for resentencing).
        Portion of judgment denying AIP programming
under ORS 421.508(4) vacated; remanded for resentencing;
otherwise affirmed.