State v. Wooley

FILED: January 28, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

TROY WOOLEY,

Defendant-Appellant.

Lincoln County Circuit Court
040757
A131494

Charles P. Littlehales, Judge.

Submitted on December 19, 2008.

Peter Gartlan, Chief Defender, Legal Services Division, and David C. Degner, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Janet A. Metcalf, Assistant Attorney General, filed the brief for respondent.

Before Edmonds, Presiding Judge, and Wollheim, Judge, and Carson, Senior Judge.

PER CURIAM

Remanded for sentencing; otherwise affirmed.

PER CURIAM

A jury found defendant guilty of one count of first-degree encouraging child sexual abuse and one count of second-degree encouraging child sexual abuse.  On appeal, defendant asserts various challenges to his convictions.  We affirm defendant's convictions without discussion.

Defendant also challenges his sentences on each of the two counts, which the trial court ordered to run consecutively.  On appeal, defendant argues, as he did below, that both of the crimes for which he was convicted involved the same photograph of a child.  In his view, he should not have received consecutive sentences for downloading and printing the photograph (Count 2) and possessing it (Count 3), where both counts were alleged to have occurred at the same place and time.  The state, though not conceding that defendant was sentenced for printing and possessing a single image, concedes that "[t]he statutory basis on which the trial court imposed a consecutive sentence is not particularly clear."  Accordingly, the state submits that "the court may not have made required findings, [and] this court should remand to the trial court for resentencing."  See ORS 137.123.  We agree and accept the state's concession.

Remanded for resentencing; otherwise affirmed.