State v. Flanagan

219 P.3d 610, 231 Or. App. 561, 2009 Ore. App. LEXIS 1667

Opinion

PER CURIAM

Defendant was convicted of felony fourth-degree assault and reckless endangerment. For the assault, the trial court sentenced him to 55 months’ imprisonment, followed by 24 months’ post-prison supervision. Defendant did not object to the sentence. He now appeals, assigning error to the imposition of the sentence, which he contends violates OAR 213-005-0002(4). That rule provides that a “term of post-prison supervision, when added to the prison term, shall not exceed the statutory maximum indeterminate sentence for the crime of conviction.” In this case, defendant contends, he was convicted of a Class C felony, which carries a maximum indeterminate sentence of 60 months. ORS 161.605(3). That means that his sentence of 55 months’ imprisonment plus 24 months’ post-prison supervision — totaling 79 months— exceeds the 60-month maximum. The state concedes that the sentence plainly violates OAR 213-005-0002(4) and that the case must be remanded for resentencing. We agree and accept the concession.

Remanded for resentencing; otherwise affirmed.