State v. Young

104                   April 17, 2024               No. 244

   This is a nonprecedential memorandum opinion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.
              THOMAS DALE YOUNG,
                 Defendant-Appellant.
              Lane County Circuit Court
          21CR47653, 21CR62768, 22CR35457;
          A179548 (Control), A179549, A179550

  Jay A. McAlpin, Judge.
  Submitted March 14, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and David O. Ferry, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
  Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
  EGAN, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2024)            105

        EGAN, J.
        In this consolidated criminal appeal, defendant
pleaded guilty to 19 criminal charges in three different
cases (Case Nos. 21CR47653, 21CR62768, and 22CR35457).
All three cases involved Class C felonies. In Case No.
21CR47653, defendant received 60-month prison sentences
on second-degree burglary counts followed by 12 months of
post-prison supervision (PPS) on each count, with the prison
terms on two of those sentences to be served consecutively
and the others served concurrently. In Case No. 21CR62768,
defendant received 60 months in prison consecutive to the
sentences in Case No. 21CR47653, followed by 12 months of
PPS. And, in Case No. 22CR35457, defendant received 13-
and 30-month prison sentences to run concurrently with the
sentences in the other two cases, followed by 12 months of
PPS.
         On appeal, defendant advances two assignments of
error. First, he argues that the trial court plainly erred by
exceeding the statutory maximum sentence of 60 months
for his burglary convictions when it imposed 12 months
of PPS in addition to the 60-month prison terms in Case
Nos. 21CR47653 and 21CR62768. Second, he argues that
his aggregate prison term of 180 months in those cases is
disproportionate under Article I, section 16, of the Oregon
Constitution. For the reasons that follow, we affirm.
         Exceeding the statutory maximum sentence. With
regard to defendant’s first assignment of error, the state concedes that the trial court’s imposition of 12 months of PPS
on the convictions in Case Nos. 21CR47653 and 21CR62768
was plainly erroneous; however, it argues that we should
not exercise our discretion to correct the error, because it
will have no practical effect on defendant in light of the fact
that the court lawfully imposed 12-month PPS terms for the
convictions in Case No. 22CR35457, which defendant does
not challenge, and the PPS terms will merge after defendant is released from prison. OAR 213-012-0040(1) (“If the
offender has been sentenced to multiple terms of [PPS], the
terms of [PPS] shall be served as a single term.”); see State
v. Tracy, 

, 

 (1992) (concluding that a claimed error in imposing a PPS term did not
106                                            State v. Young

require reversal, because there was another unchallenged
PPS term of the same length on a different conviction). We
are not persuaded on this record that the court’s erroneous
imposition of the PPS terms will have a practical effect on
defendant’s rights, and we therefore decline to exercise our
discretion to correct the error. See State v. Allen, 

, 

, rev den, 

 (2017) (explaining that, in determining whether to exercise discretion to
correct a plain error involving a sentence, the court will consider, among other things, the role of other sentences in the
case, the interests of the justice system in avoiding unnecessary, repetitive sentencing proceedings, and the gravity of
the error).
        Proportionality. As for defendant’s second assignment, our case law forecloses his “aggregate sentence” proportionality argument. See State v. Horner, 

, 

 (2020), modified on recons, 

, 

 (2021) (recognizing our decisions holding
that “disproportionality challenges with respect to aggregate sentences imposed on convictions for multiple counts
are not cognizable under Article I, section 16,” but that the
question remains an open one in the Supreme Court).
        Affirmed.