State v. Grow

FILED: September 28, 2005

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

GARY D. GROW,

Appellant.

0303-31656; A123849

Appeal from Circuit Court, Multnomah County.

David Gernant, Judge.

Submitted on record and briefs August 12, 2005.

Hari Nam S. Khalsa filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Erin C. Lagesen, Assistant Attorney General, filed the brief for respondent.

Before Linder, Presiding Judge, and Edmonds* and Wollheim, Judges.

PER CURIAM

Sentences vacated; remanded for resentencing; otherwise affirmed.

*Edmonds, J., vice Richardson, S. J.

PER CURIAM

Defendant was convicted of second-degree unlawful sexual penetration, first-degree sexual abuse, and third-degree sexual abuse. On appeal, he seeks reversal of his convictions on the ground that the trial court erroneously admitted a school assignment paper written by one of the victims. We reject that argument without discussion. Defendant also argues that the trial court erred in imposing an excessive period of post-prison supervision. The state concedes that error and, for the reasons set forth below, we accept the state's concession and remand for resentencing.

On the conviction for unlawful sexual penetration, the trial court sentenced defendant to a 75-month term of imprisonment and a 10-year period of post-prison supervision. (1) ORS 144.103 provides that, for certain sexual offenses--including unlawful sexual penetration--the defendant "shall serve a term of post-prison supervision that shall continue until the term of the post-prison supervision, when added to the term of imprisonment served, equals the maximum statutory indeterminate sentence for the violation." The maximum statutory indeterminate sentence for second-degree unlawful sexual penetration, a Class B felony, is 10 years. ORS 163.408(2); ORS 161.605(2). It follows that the trial court erred in imposing a 10-year period of post-prison supervision.

Sentences vacated; remanded for resentencing; otherwise affirmed. 

1. The trial court "merged" the first-degree sexual abuse conviction with the conviction for unlawful sexual penetration for purposes of sentencing. On the third-degree sexual abuse conviction, the court placed defendant on probation for 36 months.