State v. Lowell

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FILED: January 25, 2012 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. THOMAS LEE LOWELL, Defendant-Appellant. Marion County Circuit Court 09C51793 A145894 Joseph V. Ochoa, Judge. Submitted on December 02, 2011. Kenneth A. Kreuscher and Portland Law Collective, LLP, filed the brief for appellant. John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Susan G. Howe, Senior Assistant Attorney General, filed the brief for respondent. Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge. PER CURIAM Remanded for resentencing; otherwise affirmed. 1 PER CURIAM 2 Defendant was convicted of conversion, a Class C felony under ORS 3 163.275(2), and was sentenced to 36 months of imprisonment and 36 months of post- 4 prison supervision. On appeal, defendant argues that the trial court plainly erred in 5 imposing a sentence that exceeds 60 months, the maximum allowed by law for a Class C 6 felony. ORS 161.605(3) (maximum term of an indeterminate sentence of imprisonment 7 is, "[f]or a Class C felony, 5 years"); OAR 213-005-0002(4) ("The term of post-prison 8 supervision, when added to the prison term, shall not exceed the statutory maximum 9 indeterminate sentence for the crime of conviction."). The state concedes that the 72- 10 month sentence imposed by the trial court is plainly erroneous. ORAP 5.45; Ailes v. 11 Portland Meadows, Inc., 312 Or 376, 823 P2d 956 (1991). That concession is well 12 founded. State v. Donner, 230 Or App 465, 469, 215 P3d 928 (2009) (trial court plainly 13 erred in imposing a "total sentence of 72 months--36 months' incarceration and 36 14 months' post-prison supervision--on a Class C felony"). For the same reasons expressed 15 in Donner, we exercise our discretion to correct the error in this case. 16 Remanded for resentencing; otherwise affirmed. 1

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