State v. Hopson

Court of Appeals of Oregon

State v. Hopson

164 P.3d 342, 214 Or. App. 288, 2007 Ore. App. LEXIS 1016

CourtCourt of Appeals of Oregon

DecidedJuly 25, 2007

Docket03CR0270; A126720

StatusPublished

Cited by2 cases

This text of 164 P.3d 342 (State v. Hopson) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Hopson, 164 P.3d 342, 214 Or. App. 288, 2007 Ore. App. LEXIS 1016 (Or. Ct. App. 2007).

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Opinion

*289 PER CURIAM

Defendant, who was convicted after a jury trial of one count of first-degree sodomy, ORS 163.405, and one count of first-degree kidnapping, ORS 163.235, appeals, assigning error to the trial court’s determination that he is a “sexually violent dangerous offender,” ORS 137.765. Defendant contends that the trial court’s determination in that regard violated the Sixth Amendment to the United States Constitution under the principles enunciated in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000). The state cross-appeals, assigning error to the court’s imposition of concurrent sentences, based on the court’s determination that, although it believed that consecutive sentences would be justified, the principles oí Apprendi and Blakely precluded the imposition of such sentences based on judicial factfinding. As explained below, we agree with the state on cross-appeal, and therefore remand for resentencing on the cross-appeal. Given that disposition, we need not reach defendant’s assignment of error on appeal.

As an initial matter, we note that the issue that the state raises on cross-appeal is reviewable under ORS 138.222(4)(a) (as a claim that the “sentencing court failed to comply with requirements of law in * * * failing to impose a sentence”). See State v. Arnold, 214 Or App 201, 212, 164 P3d 334 (2007) (appellate court may review a sentencing issue when the sentence that was imposed was an authorized sentence, but the lower court is asserted to have erroneously determined that the defendant was not eligible for a different, also legally authorized, sentence).

The issue raised in the cross-appeal was resolved by this court in State v. Tanner, 210 Or App 70, 76, 150 P3d 31 (2006), in which we held that “judicial factfinding in support of consecutive sentences does not violate the Sixth Amendment.” The trial court erred in its conclusion to the contrary. Given that that error requires us to remand the case for resentencing, ORS 138.222(5), there is no need for us to reach the sentencing issue raised by defendant on appeal.

*290 Appeal dismissed as moot. On cross-appeal, sentences vacated; remanded for resentencing; otherwise affirmed.

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*289 PER CURIAM

Defendant, who was convicted after a jury trial of one count of first-degree sodomy, ORS 163.405, and one count of first-degree kidnapping, ORS 163.235, appeals, assigning error to the trial court’s determination that he is a “sexually violent dangerous offender,” ORS 137.765. Defendant contends that the trial court’s determination in that regard violated the Sixth Amendment to the United States Constitution under the principles enunciated in Blakely v. Washington, 542 US 296, 124 S Ct 2531, 159 L Ed 2d 403 (2004), and Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000). The state cross-appeals, assigning error to the court’s imposition of concurrent sentences, based on the court’s determination that, although it believed that consecutive sentences would be justified, the principles oí Apprendi and Blakely precluded the imposition of such sentences based on judicial factfinding. As explained below, we agree with the state on cross-appeal, and therefore remand for resentencing on the cross-appeal. Given that disposition, we need not reach defendant’s assignment of error on appeal.

As an initial matter, we note that the issue that the state raises on cross-appeal is reviewable under ORS 138.222(4)(a) (as a claim that the “sentencing court failed to comply with requirements of law in * * * failing to impose a sentence”). See State v. Arnold, 214 Or App 201, 212, 164 P3d 334 (2007) (appellate court may review a sentencing issue when the sentence that was imposed was an authorized sentence, but the lower court is asserted to have erroneously determined that the defendant was not eligible for a different, also legally authorized, sentence).

The issue raised in the cross-appeal was resolved by this court in State v. Tanner, 210 Or App 70, 76, 150 P3d 31 (2006), in which we held that “judicial factfinding in support of consecutive sentences does not violate the Sixth Amendment.” The trial court erred in its conclusion to the contrary. Given that that error requires us to remand the case for resentencing, ORS 138.222(5), there is no need for us to reach the sentencing issue raised by defendant on appeal.

*290 Appeal dismissed as moot. On cross-appeal, sentences vacated; remanded for resentencing; otherwise affirmed.

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164 P.3d 342, 214 Or. App. 288, 2007 Ore. App. LEXIS 1016, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hopson-orctapp-2007.

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