State v. Fraze ( 1992 )

PER CURIAM

After a trial to the court, defendant was found guilty of, among other things, felon in possession of a firearm, ORS 166.270(1), unlawful possession of a firearm, ORS 166.250(1), and delivery of a controlled substance as part of a scheme or network. ORS 475.992; OAR 253-04-002(3). He contends that the evidence was insufficient to convict him on the firearms charges and that the court erred in applying the “scheme or network” aggravating factor in determining his sentence. We affirm the convictions because the errors were not preserved and remand for resentencing on the charge of delivery of a controlled substance.

On the controlled substance charge, defendant contends that the court erred in increasing the crime serious ranking of his delivery of a controlled substance conviction based on the “scheme or network” allegation. He did not demurrer to the indictment but, before sentencing, he challenged the constitutionality of the scheme or network language. He has preserved his challenge to the sentence and the state concedes that the sentence is improper. State v. Moeller, 105 Or App 434, 806 P2d 130, rev dismissed 312 Or 76, 815 P2d 701 (1991). We accept that concession and remand for resentencing. State v. Medina, 111 Or App 108, 109, 823 P2d 453 (1992).

Convictions affirmed; remanded for resentencing on the delivery of a controlled substance charge.