Opinion
CR030994; A126452.
Submitted on record and briefs October 31, 2006.
Filed: December 6, 2006.
Appeal from Circuit Court, Yamhill County. Ronald W. Stone, Judge.
Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and Susan F. Drake, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jonathan H. Fussner, Attorney-In-Charge, Criminal Appeals Unit, filed the brief for respondent.
Before HASELTON, Presiding Judge, and BREWER, Chief Judge, and ROSENBLUM, Judge.
PER CURIAM
Sentences vacated; remanded for resentencing; otherwise affirmed.
Defendant was convicted and sentenced on two counts of attempted first-degree sexual abuse, ORS 163.427, and misdemeanor furnishing obscene materials to minors, ORS 167.065. In addition to imposing prison terms on the two felony convictions, the trial court imposed a five-year term of post-prison supervision. Defendant argues on appeal that imposition of that term of post-prison supervision violates OAR 213-005-0002(4), which provides, in pertinent part, that "[t]he term of post-prison supervision, when added to the prison term, shall not exceed the statutory maximum indeterminate sentence for the crime of conviction," which in this case is five years. The state acknowledges the error, but suggests that defendant was required to file a motion in the trial court pursuant to ORS 138.083 to seek correction of the error rather than raising it in the first instance in this court.
In State v. Balogh , 207 Or App 377, 142 P3d 473, opinion and disposition withdrawn as moot , 209 Or App 162, ___ P3d ___ (2006), we explained that a defendant's failure to seek correction of a judgment pursuant to ORS 138.083 did not preclude him from raising the error as apparent on the face of the record in this court. Rather, we noted, "neither availing oneself of the remedy provided in ORS 138.083, nor failing to do so, necessarily controls this court's discretion whether to reach a claimed error in sentencing." Id. at 381. Under substantially similar facts, we concluded that "[t]he gravity of that unlawful sentence outweighs the availability, past or future, of an ORS 138.083 proceeding." Id. We readopt our reasoning from Balogh, 207 Or App at 381, and for the reasons set forth in that case, exercise our discretion to correct the error.
Sentences vacated; remanded for resentencing; otherwise affirmed.