State v. Montano , 300 Or. App. 812 ( 2019 )

812
Submitted September 30; remanded for resentencing, otherwise affirmed
November 27, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
MAX PAUL MONTANO, JR.,
Defendant-Appellant.
Washington County Circuit Court
17CR64866; A167088
452 P3d 1082
Eric Butterfield, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Erica Herb, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Leigh A. Salmon, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
Cite as 300 Or App 812 (2019) 813
PER CURIAM
In this criminal appeal, defendant raises three
assignments of error and two supplemental assignments of
error. In his first two assignments, he challenges the trial
court’s denial of his motions for judgment of acquittal with
respect to a count for unlawful use of dangerous weapon and
a count for felon in possession of a firearm. We reject those
two assignments of error without discussion. In his supple-
mental assignments, defendant asserts that the trial court
erred by instructing the jury that it could return nonunani-
mous verdicts and by accepting nonunanimous jury verdicts
on Counts 1-4 and 7. We also reject those assignments of
error without written discussion. As for defendant’s remain-
ing assignment of error, he contends that the trial court vio-
lated his right, under Article I, section 11, of the Oregon
Constitution, to speak personally and through counsel at
sentencing. The state concedes that the trial court pre-
vented defendant’s attorney from making a legal argument
on defendant’s behalf at sentencing and that that was error.
See State v. Southards, 172 Or App 634, 642, 21 P3d 123
(2001) (it was error that the “trial court proceeded to impose
sentence on [defendant] without permitting either defense
counsel or defendant to comment on the new information
before the court”). We agree, accept the state’s concession,
and remand for resentencing.
Remanded for resentencing; otherwise affirmed.