State v. Doty

247 P.3d 343, 240 Or. App. 557, 2011 Ore. App. LEXIS 94

Opinion

PER CURIAM

Defendant was convicted of first-degree robbery, ORS 164.415; two counts of second-degree robbery, ORS 164.405; possession of a short-barreled shotgun, ORS 166.272; and being a felon in possession of a firearm, ORS 166.270. He argues on appeal that, because the indictment did not allege that defendant knew he was a felon, the trial court plainly erred in failing to grant, sua sponte, an arrest of judgment. As defendant conceded at oral argument, pursuant to this court’s recent decision in State v. Anderson, 233 Or App 475, 227 P3d 192 (2010), the indictment was sufficient. However, defendant contends that that case was wrongly decided. We decline defendant’s invitation to reconsider Anderson and, in light of our holding in that case, reject without further discussion his assertion that the trial court committed plain error with respect to the conviction for felon in possession.

Defendant also contends on appeal that the sentence imposed by the trial court with respect to possession of a short-barreled shotgun violated OAR 213-012-0020. Although he did not raise the issue in the trial court, he argues that we should nonetheless consider it as plain error. The state concedes that the trial court plainly erred in imposing a sentence in violation of OAR 213-012-0020. We agree with the concession, exercise our discretion to review the error, and conclude that the case must be remanded for resentencing. See State v. Davidson, 208 Or App 672, 673, 145 P3d 276 (2006) (treating similar sentencing error as plain error and exercising discretion to correct it); see also ORS 138.222(5) (where an error requires resentencing, entire case must be remanded for resentencing).

Remanded for resentencing; otherwise affirmed.