State v. Williams

295 P.3d 693, 254 Or. App. 746, 2013 WL 363476, 2013 Ore. App. LEXIS 112

• Court: Court of Appeals of Oregon
• Decided: January 30, 2013
• Docket: 10C41319, 10C42507; A145773, A145774
• Status: Published

Opinion

PER CURIAM

Defendant petitions for reconsideration of our decision in State v. Williams, 253 Or App 608, 293 P3d 1091 (2012), in which we affirmed without opinion the trial court’s judgments in two cases that were consolidated on appeal, Marion County Case Nos. 10C41319 and 10C42507. He argues that we instead should have remanded for resentencing, based on his third assignment of error, in which he argued — and the state conceded — that the trial court had erred in sentencing him as a repeat property offender under ORS 137.717 (2009)¹ on one of the counts for which he was convicted because it relied on a conviction that was not a qualifying offense. Defendant is correct.

On Count 2 in Case No. 10C42507, the trial court sentenced defendant as a repeat property offender under ORS 137.717, using defendant’s conviction for theft of services in Case No. 10C41319 as one of the four predicate convictions required under that statute to impose a repeat property offender sentence. Theft of services, ORS 164.125,² is not a qualifying predicate offense that can give rise to a repeat property offense sentence. ORS 137.717(2) (listing qualifying offenses). Thus, as the state concedes, the court erred.

In his brief on appeal, defendant asserted that the proper remedy for that error is to remand for resentencing in Case No. 10C42507. Although defendant now requests that we remand both cases for resentencing, we allow reconsideration only as to the narrow issue discussed above and grant defendant the relief that he requested on appeal.

Reconsideration allowed; former disposition withdrawn; in Case No. 10C42507, remanded for resentencing, otherwise affirmed; in Case No. 10C41319, affirmed.

1 The amendments to ORS 137.717 made by the legislature in Oregon Laws 2009, chapter 660, section 8, apply in this case. See Or Laws 2009, ch 660, §§ 48(3) [renumbered to (2) by amendment in 2011], 49(4). We therefore refer to the 2009 version in this opinion.

2 ORS 164.125 has been amended since defendant committed his crime; however, because those amendments do not affect our analysis, we refer to the current version of the statute in this opinion.