State v. Nees ( 2021 )

374
Argued and submitted March 4; remanded for resentencing, otherwise affirmed
March 31; petition for review denied July 29, 2021 (368 Or 511)
STATE OF OREGON,
Plaintiff-Respondent,
v.
MYLES JACOB NEES,
Defendant-Appellant.
Clackamas County Circuit Court
18CR39661, 18CR32734, 18CR74028;
A170703 (Control), A170704, A170705
484 P3d 407
Ulanda L. Watkins, Judge.
Eric Johansen, Deputy Public Defender, argued the
cause for appellant. Also on the opening brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services. Myles Jacob Nees filed the sup-
plemental and reply briefs pro se.
Patrick M. Ebbett, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
Cite as 310 Or App 374 (2021) 375
PER CURIAM
Defendant appeals a judgment of conviction for
second-degree assault, fourth-degree assault, attempting to
elude, reckless driving, recklessly endangering, and other
charges after he fled a traffic stop at high speed and crashed
into two cars. Defendant makes multiple assignments of
error, but most do not provide a basis for reversal. Thus,
we reject the bulk of defendant’s assignments of error with-
out discussion and address only defendant’s contention that
the trial court erred in imposing a consecutive sentence on
Count 9. The state concedes that the trial court so erred. As
we explain below, we agree and accept the state’s concession.
During sentencing, the trial court announced on
the record that, “[o]n Count 9, Attempt to Elude, out of the
vehicle, this is an executed jail sentence of one year, to run
concurrent to [Counts] 1, 4, 5, 6, 7, and 8.” The judgment,
however, reads that, on Count 9, “[f]or the reasons stated on
the record, this sentence shall be consecutive to sentence[s]
imposed on Count[s] 1, 4, 5, 6, 7, 8.” Defendant contends that
the court erred in changing the sentence from the concur-
rent sentence expressed orally at the hearing to the consec-
utive sentence, imposed outside of his presence. The state
concedes that the court erred. We agree that the trial court
erred and accept the state’s concession. See State v. Rossi,
216 Or App 168, 169, 171 P3d 1031 (2007) (trial court erred
in changing sentence from concurrent to consecutive outside
of the defendant’s presence and without a waiver).
Remanded for resentencing; otherwise affirmed.