State v. Morris ( 2021 )

692
Submitted December 2; remanded for resentencing, otherwise affirmed
December 29, 2021; petition for review denied April 21, 2022 (369 Or 676)
STATE OF OREGON,
Plaintiff-Respondent,
v.
ANTONIO MICHAEL MORRIS,
Defendant-Appellant.
Lincoln County Circuit Court
19CR48742; A173378
501 P3d 105
Amanda R. Benjamin, Judge pro tempore.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna L. Jenkins, Assistant Attorney
General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
Cite as 316 Or App 692 (2021) 693
PER CURIAM
Defendant appeals his convictions and sentences
for second-degree kidnapping, ORS 163.225, felony strangu-
lation, ORS 163.187, and felony fourth-degree assault, ORS
163.160. He was tried to the court, but argues on appeal
that his waiver of jury trial rights was not knowing and
voluntary; we reject that argument for the reasons set forth
in State v. Austin, 316 Or App 56, 501 P3d 1136 (2021), and
State v. Gomez, 310 Or App 693, 485 P3d 314 (2021). He also
challenges the sufficiency of the evidence to support his kid-
napping conviction, and the court’s imposition of a depar-
ture sentence on that conviction; we reject those arguments
without discussion. Finally, defendant asserts that the trial
court plainly erred in imposing incorrect post-prison super-
vision terms on all of the offenses. He notes that none of
the post-prison supervision terms imposed in this case were
of the correct length as specified in OAR 213-005-0002(2).
The state concedes that defendant is correct as to that issue,
and also points out that the post-prison supervision term
for the kidnapping conviction failed to take into account the
provisions of OAR 213-005-0002(4), which would limit the
combined prison and post-prison supervision terms for that
offense to a total of 10 years. We agree and accept the con-
cession, and we remand for the court to consider on resen-
tencing the proper application of OAR 213-005-0002.
Remanded for resentencing; otherwise affirmed.