State v. Oard

528                   December 13, 2023                 No. 653

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
                TIMOTHY EUGENE OARD,
                    Defendant-Appellant.
                 Linn County Circuit Court
                   21CR40025; A178026

   Thomas McHill, Judge.
   Submitted November 20, 2023.
   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 Adam Holbrook, 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Nonprecedential Memo Op: 

 (2023)           529

        ORTEGA, P. J.
         Defendant appeals a judgment regarding his convictions and sentences on one count of felony fourth-degree
assault, ORS 163.160, and five counts of tampering with a
witness, ORS 162.285. He first argues on appeal that the
trial court erred in failing to acquit him on the tampering
with a witness charges because the state adduced insufficient evidence that defendant, during telephone calls he
made to the victim from jail, induced or attempted to induce
her to offer false testimony or unlawfully withhold testimony regarding the assault. After review of the record, we
conclude that defendant did not preserve the arguments he
now advances on appeal. We therefore reject his challenges
to the sufficiency of the evidence without further discussion.
         Defendant also argues, and the state concedes,
that the trial court plainly erred in imposing sentence on
the assault conviction. Fourth-degree assault is a Class C
felony, for which the maximum indeterminate sentence is
five years. ORS 161.605. Here, the court imposed a fiveyear prison sentence for the assault, as well as a two-year
post-prison supervision term, which when combined, exceed
the maximum indeterminate sentence for the offense. The
judgment provides that the “[i]ncarceration time served and
the Post Prison total combined length shall not exceed [five]
years,” but as we explained in State v. Stalder, 

, 

, rev den, 

 (2006), that approach
to sentencing creates an impermissibly indeterminate post-prison supervision term. Given the gravity of the error, we
exercise our discretion to correct it. See State v. Mitchell,

, 

 (2010) (explaining why
such an error is not harmless and exercising discretion to
correct error under similar circumstances).
        Remanded for resentencing; otherwise affirmed.