State v. Flanagan

FILED: October 28, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

ARTHUR LEON COLBY FLANAGAN,

Defendant-Appellant.

Lincoln County Circuit Court
075095
A138335

Charles P. Littlehales, Judge.

Submitted on September 04, 2009.

Peter Gartlan, Chief Defender, and Ernest G. Lannet, Senior Deputy Public Defender, Appellate Division, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Jennifer S. Lloyd, Attorney-in-Charge Criminal Appeals, filed the brief for respondent.

Before Landau, Presiding Judge, and Schuman, Judge, and Ortega, Judge.

PER CURIAM

Remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant was convicted of felony fourth-degree assault and reckless endangerment.  For the assault, the trial court sentenced him to 55 months' imprisonment, followed by 24 months' post-prison supervision.  Defendant did not object to the sentence.  He now appeals, assigning error to the imposition of the sentence, which he contends violates OAR 213-005-0002(4).  That rule provides that a "term of post-prison supervision, when added to the prison term, shall not exceed the statutory maximum indeterminate sentence for the crime of conviction."  In this case, defendant contends, he was convicted of a Class C felony, which carries a maximum indeterminate sentence of 60 months.  ORS 161.605(3).  That means that his sentence of 55 months' imprisonment plus 24 months' post-prison supervision--totaling 79 months--exceeds the 60-month maximum.  The state concedes that the sentence plainly violates OAR 213-005-0002(4) and that the case must be remanded for resentencing.  We agree and accept the concession.

Remanded for resentencing; otherwise affirmed.