State v. Dillon ( 2020 )

558
Submitted August 7; reversed and remanded for resentencing, otherwise
affirmed September 16, 2020
STATE OF OREGON,
Plaintiff-Respondent,
v.
WILLIAM TRAVIS DILLON,
Defendant-Appellant.
Marion County Circuit Court
17CR82332; A171799
473 P3d 146
Daniel J. Wren, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kali Montague, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Colm Moore, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Reversed and remanded for resentencing; otherwise
affirmed.
Cite as 306 Or App 558 (2020) 559
PER CURIAM
This is a criminal appeal in which defendant chal-
lenges the probation revocation judgment that imposes a
36-month post-prison supervision (PPS) term. Defendant
was convicted of strangulation and placed on probation. The
trial court categorized defendant as a 6-B on the Oregon
Felony Sentencing Guidelines. After defendant violated
the terms of his probation, the court sentenced defendant
to 24 months’ imprisonment, followed by 36 months’ PPS,
notwithstanding the fact that, under the sentencing guide-
lines, the PPS term for category 6 crimes is 24 months. See
OAR 213-005-0002(2)(a). Defendant contends that the court
plainly erred in imposing 36 months’ PPS because that term
exceeds the applicable PPS term allowed under the sentenc-
ing guidelines.
The state concedes that the trial court committed
plain error in imposing a PPS term that exceeds the appli-
cable PPS term allowed under the sentencing guidelines.
See OAR 213-005-0002(1) (departures on the duration of
PPS are not allowed). Further, the state concedes that we
have previously exercised our discretion to correct such an
error in circumstances that are indistinguishable from this
case. See State v. Glazier, 266 Or App 824, 825-26, 340 P3d
90 (2014) (exercising discretion to correct sentencing error
when court imposed a PPS term that exceeded the duration
of PPS allowed under sentencing guidelines). Finally, the
state concedes that, under those circumstances, we should
remand for resentencing in this case for the trial court to
reduce the PPS term to 24 months.
We agree, accept the state’s concession, and, for the
reasons stated in State v. Delgado, 239 Or App 435, 438-
40, 245 P3d 170 (2010), rev den, 350 Or 423 (2011), exercise
our discretion under ORAP 5.45(1) to review and correct
the PPS term as error apparent on the record. See Ailes v.
Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956(1991) (court has discretion to review unpreserved error of
law apparent on the record).
Reversed and remanded for resentencing; other-
wise affirmed.