State v. Houck

                                  370

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
     Submitted July 1; remanded for resentencing, otherwise affirmed
                            August 10, 2022


                STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
        JOHN STANLEY LITTLEFOOT HOUCK,
                 Defendant-Appellant.
              Linn County Circuit Court
                20CR43457; A175807

  Thomas McHill, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mary M. Reese, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Philip Thoennes, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
  ORTEGA, P. J.
  Remanded for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2022)            371

        ORTEGA, P. J.
         Defendant pleaded guilty to one count of third-degree assault, ORS 163.165 and two counts of strangulation, ORS 163.187. He also pleaded no contest to one count
of second-degree assault, ORS 163.175. Pursuant to stipulation, he received consecutive sentences, including 60-month
terms of incarceration on the third-degree assault count
and on each count of strangulation. On appeal, he asserts
that the trial court plainly erred in imposing 60 months of
post-prison supervision (PPS) on each of those convictions,
“minus time actually served pursuant to ORS 144.103.” The
state concedes the error.
         For two reasons, the 60-month PPS terms were
imposed erroneously. First, ORS 144.103 does not apply to
these offenses, and application of that statute in this circumstance resulted in unlawfully indeterminate sentences.
See State v. Chapman, 

, 

(2017) (describing and correcting similar error as plain
error). Also, each of the three offenses for which the court
imposed a 60-month term of incarceration was a Class C
felony. The 60-month PPS terms, when added to those incarceration terms, exceed the five-year maximum indeterminate sentence for Class C felonies. ORS 161.605(3). See also
OAR 213-005-0002(4) (“The term of post-prison supervision,
when added to the prison term, shall not exceed the statutory maximum indeterminate sentence for the crime of conviction.”). The state concedes that the trial court committed
plain error in imposing these sentences for both reasons. We
agree and accept the state’s concession. Further, because
the gravity of the error to defendant is significant, we exercise our discretion to correct the error.
        Remanded for resentencing; otherwise affirmed.