State v. Pryor ( 2021 )

403
Submitted January 8; amended judgments vacated and remanded, otherwise
affirmed April 7, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOHN HENRY ROSS PRYOR,
aka John Henryross Pryor,
Defendant-Appellant.
Multnomah County Circuit Court
15CR43245; A171601
484 P3d 1123
Defendant appeals from two amended judgments entered after a resentenc-
ing hearing that reflect an increase in his sentence on a second-degree assault
conviction. Defendant assigns error to the trial court’s issuance of the amended
judgments, because it did so without notice to him or an opportunity to be heard,
violating his statutory and constitutional rights to be present. The state con-
cedes that the trial court erred. The parties disagree as to the proper disposition.
Held: Based on the record here, it is possible that the trial court was attempt-
ing to correct a clerical error under ORS 137.172 when it entered the amended
judgments.
Amended judgments vacated and remanded; otherwise affirmed.
Leslie M. Roberts, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Daniel C. Bennett, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
DeVORE, P. J.
Amended judgments vacated and remanded; otherwise
affirmed.
404 State v. Pryor
DeVORE, P. J.
After an appeal in which we reversed one of defen-
dant’s convictions, affirmed others, and remanded for resen-
tencing, State v. Pryor, 294 Or App 125, 430 P3d 197 (2018),
the trial court conducted a resentencing hearing and, ulti-
mately, entered a judgment on June 13, 2019, containing
defendant’s sentence. Subsequent to entry of that judg-
ment, the trial court entered two amended judgments, in
February and March 2020. On appeal, defendant raises one
assignment of error in which he challenges the trial court’s
amended judgment increasing his sentence on Count 6,
second-degree assault, ORS 163.175.1 For the reasons
explained below, we vacate the amended judgments entered
in February 2020 and March 2020 and remand for further
proceedings.
As relevant to this appeal, at defendant’s resentenc-
ing hearing, the state asked the court to, in part, impose a
sentence of 144 months’ imprisonment on the assault con-
viction and defendant asked for imposition of 70 months’
imprisonment. The trial court stated, in part:
“[O]n Count 6, I am finding aggravating enhancement
factors of permanent injury to the victim, actual violence
toward the victim, use of a weapon, being on parole at the
time of the offense, repeated terms of supervision, and
incarceration have failed to deter the Defendant. Also,
there’s persistent involvement in criminal behavior. So I
will impose a departure, upward departure sentence 144
months.”
Defendant objected to that sentence on the ground that
it exceeded the maximum allowable by law, and stated,
“I think you can only max him out at 120 months and no
post-prison supervision.” The court stated its intention to
follow the state’s recommendation but invited the parties to
provide additional briefing on that point. Later that same
day, the court entered a “temporary sentencing order” that
1
Defendant appeals amended judgments that were entered on February 7,
2020, and March 3, 2020. The error at issue on appeal first arose in the judg-
ment entered in February 2020 and, therefore, we focus our discussion on that
judgment.
Cite as 310 Or App 403 (2021) 405
imposed, by upward departure, 120 months’ imprisonment
on the assault conviction.
Approximately three weeks later, on June 13, 2019,
a judgment was entered that imposed sentence in accor-
dance with the sentence that the court had imposed orally
at the end of the resentencing hearing, with the exception
that it imposed only 70 months’ imprisonment on Count 6.
That sentence was described in the judgment as an “Upward
Durational Departure.”
On February 7, 2020, the trial court entered an
amended judgment in which it changed defendant’s sen-
tence on Count 6 from 70 months’ imprisonment to 120
months’ imprisonment. Defendant contends that the trial
court erred in issuing the amended judgment, because it did
so without notice to him or an opportunity to be heard, vio-
lating his statutory and constitutional rights to be present.
The state concedes that the record does not disclose that
defendant was notified in advance or given an opportunity
to be heard. Therefore, the state agrees that the trial court
erred when it entered an amended judgment without notice
to the defendant of the proposed action and an opportunity
to be heard. We agree and accept the state’s concession.
See State v. Nobles, 264 Or App 580, 333 P3d 1077 (2014)
(correcting error when trial court failed to provide written
notice before amending judgment).
The parties disagree as to the proper disposition.
Defendant argues that, because the trial court erred in
modifying his sentence and because he was already serving
a lawfully imposed sentence, we should reverse and remand
with instructions for the trial court to reinstate the June
2019 judgment with its 70-month sentence. Defendant relies
on State v. Rossi, 216 Or App 168, 171 P3d 1031 (2007). In
Rossi, the trial court had erred by substantively modifying
the defendant’s sentence in an amended judgment that it
entered without notice to defendant, without a hearing, and
without a waiver from defendant. Id. at 169. Because the
defendant was already serving the sentence, we vacated the
amended judgment and remanded with instructions to rein-
state the original judgment. Id.406 State v. Pryor
The state contends, on the other hand, that we
should remand for further proceedings, arguing that the
court has authority under ORS 137.172 to amend the June
2019 judgment to correct what was likely a clerical error.
ORS 137.172(1) provides:
“The trial court retains authority after entry of judg-
ment of conviction or a supplemental judgment, including
during the pendency of an appeal, to modify the judgment,
including the sentence, to correct any arithmetic or cleri-
cal errors or to delete or modify any erroneous term in the
judgment. The court may correct the judgment either on
the motion of one of the parties or on the court’s own motion
after written notice to all of the parties.”
We explained in State v. Johnson, 242 Or App 279, 285, 255
P3d 547, rev den, 350 Or 530 (2011), that “Oregon subscribes
to the common-law rule that, once a valid sentence is exe-
cuted—that is, once a defendant begins serving it—the trial
court loses jurisdiction over the case and, thus, power to
modify the sentence.” We also explained that the legislature
had created an exception to that rule in former ORS 138.083
(2007), repealed by Or Laws 2017, ch 529, § 26, which per-
mitted a trial court to, among other things, correct cleri-
cal errors in a judgment. Johnson, 242 Or App at 286. ORS
138.083 was replaced by a similar provision that is now cod-
ified at ORS 137.172. Or Laws 2017, ch 529, § 20.
In support of its argument that we should remand
for further proceedings, the state, as an initial matter,
acknowledges that defendant was correct when he argued
at the resentencing hearing that the sentence imposed
on Count 6 cannot exceed the statutory maximum of 120
months’ imprisonment. Next, the state contends that, when
the trial court entered the June 2019 judgment and imposed
only a 70-month prison sentence—rather than the 120-
month prison sentence it had imposed in the temporary sen-
tencing order it entered after the hearing—it was probably
a clerical error rather than a deliberate choice to reduce the
sentence.2 The state points out that the judgment continued
2
The state acknowledges, however, that, “if the 70-month sentence imposed
in the June 2019 judgment was a deliberate judicial choice—rather than a cleri-
cal mistake—then the sentencing court may not have had authority to enter an
amended judgment to reimpose the 120-month sentence.”
Cite as 310 Or App 403 (2021) 407
to describe that sentence as an “upward durational depar-
ture,” even though it was not, and that it reflected zero
months of post-prison supervision, which would not be cor-
rect if the court had intended to impose a sentence of only
70 months’ imprisonment. See OAR 213-005-0002(2), (4).
Finally, the state notes that the 120-month sentence as
imposed in the amended judgment is the same sentence that
was imposed in the temporary sentencing order.
We agree with the state that, based on the record
here, it is possible that the trial court was attempting to cor-
rect a clerical error when it entered the amended judgment.
The trial court had stated at the resentencing hearing that
it intended to follow the state’s sentencing recommenda-
tion and was imposing an “upward departure sentence,”
and the temporary order it entered included a sentence of
120 months’ imprisonment on Count 6. The trial court then
entered a judgment that imposed only 70 months’ imprison-
ment on that count, and then several months later entered
the amended judgment that reflected 120 months’ impris-
onment. As noted above, the record does not reflect that the
parties were given advance written notice as required by
ORS 137.172(1) for the court to correct a clerical error in the
judgment.
Because the trial court would have the authority
to correct a clerical error under ORS 137.172(1)—if that
is indeed what the trial court was attempting to do—we
remand for further proceedings. See Nobles, 264 Or App at
582 (vacating and remanding for further proceedings when
trial court failed to provide written notice before amending
judgment); State v. Hannemann, 261 Or App 582, 323 P3d
534 (2014) (vacating and remanding when trial court failed
to provide written notice before correcting omission in a
judgment of conviction). The remand is solely for purposes of
addressing the sentence on Count 6.
Amended judgments vacated and remanded; other-
wise affirmed.