State v. Wolberg

483 P.2d 104 (1971)

STATE of Oregon, Respondent, v. John Byron WOLBERG, Appellant.

Court of Appeals of Oregon, Department 2.

Argued and Submitted March 17, 1971.

Decided April 1, 1971.

Rehearing Denied April 27, 1971.

Review Denied June 9, 1971.

Brian L. Welch, Portland, argued the cause for appellant. With him on the brief were Pozzi, Wilson & Atchison, Portland.

Jacob B. Tanzer, Sol. Gen., Salem, argued the cause for respondent. With him on the brief was Lee Johnson, Atty. Gen., Salem.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

PER CURIAM.

The original indictment against the defendant was for assault with intent to kill. He pleaded guilty to a reduced charge, by information, of assault with a dangerous weapon. ORS 163.250. The trial court sentenced the defendant to 10 years' imprisonment, and this appeal is from that sentence, upon the ground that it is cruel and unusual punishment.

This claim is based upon psychiatric opinions indicating that the defendant is schizophrenic and that there are no facilities available in the state prison system for the treatment of his condition.

*105 Our review of the record indicates that the defendant does indeed suffer from a mental disorder. It also discloses that he engaged in bizarre attempts, almost successfully, to kill his business partner, and that he is capable of going to great lengths to accomplish such a result. This case comes within the rule of State v. Van Kleeck, 248 Or. 7, 432 P.2d 173 (1967).

The sentence which the trial court imposed was within the limitations of law and we cannot conclude that the trial court was wrong in its assessment thereof.[1]

Affirmed.

[1] See ORS 179.473 and 179.476.