State v. Borg ( 2020 )

161
Submitted November 12; in Case No. 17CR78039, reversed and remanded for
resentencing, in Case No. 18CR53274, affirmed December 23, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
DUSTIN MICHAEL BORG,
Defendant-Appellant.
Lane County Circuit Court
17CR78039, 18CR53274;
A170165 (Control), A170381
480 P3d 330
Bradley A. Cascagnette, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jonathan N. Schildt, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
In Case No. 17CR78039, reversed and remanded for
resentencing. In Case No. 18CR53274, affirmed.
162 State v. Borg
PER CURIAM
This is a consolidated appeal from two separate
cases: Case No. 17CR78039 and Case No. 18CR53274. On
appeal, defendant contends, among other things, that the
trial court erred in imposing a three-year term of post-
prison supervision (PPS) on his sentence in the probation-
revocation case, Case No. 17CR78039. The state concedes
that the court erred in the amended judgment in that case
because defendant’s term of incarceration equals the statu-
tory maximum. See, e.g., State v. Snyder, 298 Or App 804,
805, 447 P3d 41, rev den, 366 Or 64 (2019) (holding that trial
court plainly erred when it imposed a term of imprisonment
and post-prison supervision that exceeded 60 months for a
Class C felony).
The only dispute on appeal is the appropriate rem-
edy. Defendant argues that both cases should be reversed
and remanded under State v. Sheik-Nur, 285 Or App 529,
540, 398 P3d 472, rev den, 361 Or 886 (2017) (remanding
consolidated case for resentencing), because the parties
negotiated the cases together, and the trial court heard and
sentenced them together as a package. Thus, defendant
contends that the consolidated case consisting of the judg-
ments in Case No. 18CR53274 and Case No. 17CR78039 is
the “case” under ORS 138.257(4)(a)(B), and we must remand
the consolidated case for resentencing.
The state argues that Sheik-Nur is inapplicable
here and that we should reverse and remand only in the
probation-revocation case because it is not tied to the sub-
stantive criminal case consolidated on appeal. The state
acknowledges that the trial court sentenced defendant on
those cases in the same hearing, but they were not tried
together, and the sentences were not part of a sentencing
package. According to the state, the sentences were the
result of separate plea deals that were agreed to months
apart and the sentence in one case did not depend on the
sentence in the other.
Even if defendant is correct that both cases involved
plea negotiations that were interrelated and affected each
other, the record reflects that the only deviation from the
parties’ agreement(s) was the inclusion of the challenged
Cite as 308 Or App 161 (2020) 163
term of PPS in Case No. 17CR78039. That error will be cor-
rected by reversal of the trial court’s amended judgment in
the probation-revocation case to remove the erroneous PPS
term. Thus, we accept the state’s concession and adopt its
proposed remedy of reversing and remanding only in the
probation-revocation case.
In Case No. 17CR78039, reversed and remanded for
resentencing. In Case No. 18CR53274, affirmed.