State v. Redmond

435 P.3d 764, 295 Or. App. 453
CourtCourt of Appeals of Oregon
DecidedDecember 19, 2018
DocketA160665
StatusPublished
Cited by1 cases

This text of 435 P.3d 764 (State v. Redmond) 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. Redmond, 435 P.3d 764, 295 Or. App. 453 (Or. Ct. App. 2018).

Opinion

LAGESEN, P.J.

*455In this criminal case, defendant appeals an amended judgment entered after the trial court granted, in part, his motion under former ORS 138.083 (2013)1 to correct the judgment. In the motion, defendant contended that his judgment of conviction contained, among other things, merger errors, an error involving the so-called "200-percent rule," OAR 213-012-0020(2)(b),2 and errors in the terms of post-prison supervision (PPS) imposed, and he requested that the court hold a hearing on the motion and correct those errors. Without holding the requested hearing, the court denied the motion with respect to asserted merger and 200-percent-rule errors, but granted it with respect to asserted PPS errors. Thereafter, it entered an amended judgment reflecting the changes to the PPS terms that the court determined were warranted. Because we conclude that the court's ruling was, in part, based on a mistake of law, we vacate and remand for reconsideration.

Although the state contests the point, we have jurisdiction over this appeal pursuant to former ORS 138.053 (1)(a) (2013), repealed by Or. Laws 2017, ch. 529, § 26. State v. Larrance , 270 Or.App. 431, 438-39, 347 P.3d 830 (2015) (amended judgment entered pursuant to ruling on ORS 138.083 motion is appealable); State v. Harding , 222 Or.App. 415, 420, 193 P.3d 1055 (2008) ( Harding I ), adh'd to on recons. , 225 Or.App. 386, 202 P.3d 181 ( Harding II ), vac'd on other grounds , 347 Or. 368, 223 P.3d 1029 (2009).3 Our review is for abuse of discretion. Larrance , 270 Or.App. at 438, 347 P.3d 830 ; State v. Lewallen , 262 Or.App. 51, 56, 324 P.3d 530, rev. den. , 355 Or. 880, 333 P.3d 334 (2014). Although that standard is a deferential one, *456as we explained in Larrance , a discretionary decision that is founded on a misapprehension of the law qualifies as an abuse of discretion under the standard. Larrance , 270 Or.App. at 440, 347 P.3d 830 ("Here, because the trial court intended to give a lawful sentence, but misapprehended the law and ultimately decided the matter in reliance on that erroneous view of the law, the court abused its discretion.").

The relevant facts are procedural and not disputed. In 1995, a jury convicted defendant of six counts of first-degree rape (Counts 1 to 6), ORS 163.375 ; one count of first-degree kidnapping (Count 7), ORS 163.235 ; one count of first-degree sodomy (Count 8), ORS 163.405 ; and two counts of first-degree sexual abuse (Counts 9 and 12), ORS 163.427. All counts involved the same victim. In the original judgment of conviction, the trial court designated Count 1 as the primary offense and imposed a 130-month term of incarceration *766on that count. On each of Counts 2 to 6, the court imposed consecutive 22-month terms of incarceration. On Count 7, the court upwardly departed and imposed a consecutive 60-month term of incarceration. On the remaining counts, the trial court imposed concurrent terms of incarceration. On Counts 1 to 6, the court specified an indeterminate term of PPS: "240 months, less actual time served." With respect to each count, the judgment stated, "Defendant is subject to ORS 137.635 ('Denny Smith law')." Defendant appealed, and, on appeal, we ruled that the court erred when it determined that defendant was subject to ORS 137.635 but otherwise affirmed the judgment. State v. Redmond , 155 Or.App. 297, 298, 963 P.2d 743, rev. den. , 327 Or. 558 (1998). On remand, the trial court amended the original judgment to eliminate the references to ORS 137.635

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Related

In re Marriage of Schwartz and Battini
440 P.3d 92 (Court of Appeals of Oregon, 2019)

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Bluebook (online)
435 P.3d 764, 295 Or. App. 453, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-redmond-orctapp-2018.