State v. Maciel-Salcedo , 326 Or. App. 183 ( 2023 )

183
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted April 26; in Case No. 18CR07935, remanded for resentencing, other-
wise affirmed, in Case Nos. 19CR52718 and 20CR39285, affirmed May 24, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
ALEJANDRO MACIEL-SALCEDO,
Defendant-Appellant.
Marion County Circuit Court
18CR07935, 19CR52718, 20CR39285;
A176719 (Control), A176720, A176722
Daniel J. Wren, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kristin A. Carveth, 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 Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
SHORR, P. J.
In Case No. 18CR07935, remanded for resentencing;
otherwise affirmed. In Case Nos. 19CR52718 and 20CR39285,
affirmed.
184 State v. Maciel-Salcedo
SHORR, P. J.
In one of these three consolidated cases, Case No.
20CR39285, defendant was convicted of attempted first-
degree murder, attempted second-degree murder, first-
degree assault with a firearm, felon in possession of a
weapon, and multiple counts of unlawful use of a weapon.
He asserts that the trial court erred in determining his
criminal history score on several of those offenses. The state
responds that any error in that regard was harmless because
the sentences in question were imposed concurrently with
defendant’s sentences for attempted first-degree murder
and first-degree assault, which he does not challenge. As
explained below, we agree with the state that any error was
harmless.
In another case, Case No. 18CR07935, the court
revoked defendant’s probation on a conviction for unlaw-
ful use of a weapon and imposed a sentence of 18 months’
imprisonment with 24 months of post-prison supervision, to
be served consecutively with defendant’s sentences in Case
Nos. 20CR39285 and 19CR52718. Defendant contends that
the trial court plainly erred in so imposing an 18-month
sentence on revocation because the maximum sentence for
that offense was six months’ imprisonment under grid block
6I of the sentencing guidelines. The state agrees that the
court plainly erred in that regard. We agree, accept the con-
cession, and exercise our discretion to correct the error.1
In Case No. 20CR39285, defendant pleaded guilty
to attempted first-degree murder, first-degree assault, sev-
eral counts of unlawful use of a weapon, and felon in posses-
sion of a weapon. He also pleaded no contest to attempted
second-degree murder. At sentencing, the court merged the
attempted first-degree murder count with one of the unlaw-
ful use of a weapon counts, and imposed a mandatory mini-
mum sentence of 240 months’ imprisonment, which is not at
issue on appeal. The trial court also merged the attempted
second-degree murder count with another unlawful use of
a weapon count and imposed a concurrent sentence of 72
1
Defendant also appeals his probation revocation in a third case, Case No.
19CR52718, but assigns no error in that appeal.
Nonprecedential Memo Op: 326 Or App 183 (2023) 185
months’ imprisonment, which also is not at issue on appeal.
The court sentenced defendant to 90 months’ imprisonment
for the first-degree assault conviction, 45 months’ impris-
onment for the unlawful use of a weapon conviction, and 30
months’ imprisonment for the felon in possession of a fire-
arm conviction. The court used a criminal history score of B
to sentence defendant on the attempted first-degree murder
conviction, but used a criminal history score of A to sen-
tence defendant on the remaining four offenses and imposed
those remaining sentences concurrently with the attempted
first-degree murder conviction sentence and “all previously
imposed sentences” in the judgment. Defendant argues on
appeal that his criminal history score for the attempted
second-degree murder, unlawful use of a weapon, and felon
in possession of a firearm sentences should have been B
rather than A.
The state does not respond on the merits, other
than to observe that the 72-month sentence that the court
imposed on the attempted second-degree murder conviction
was in fact too short, as that offense was subject to a man-
datory minimum sentence of 90 months pursuant to ORS
137.700(2)(a)(D). Instead, it argues that any error is harm-
less because all of those sentences are concurrent with and
shorter than the unchallenged 240-month sentence for the
attempted first-degree murder conviction. Defendant sug-
gests that the error would not be harmless if his attempted
first-degree murder conviction were to be reversed or if he
was resentenced on that conviction. However, given that he
does not challenge either the conviction or the sentence for
that conviction on appeal, we agree with the state that the
error was harmless.2 See, e.g., State v. Freauff, 308 Or App
530, 479 P3d 1114, rev den, 368 Or 206 (2021) (concluding
that any sentencing error was harmless where sentence
in question was concurrent with and subsumed by longer
sentences).
With respect to the consecutive sentence on revoca-
tion in Case No. 18CR07935, the parties agree that the sen-
tence imposed was incorrect and that the error was plain. We
2
Defendant does not contend that any sentencing errors relating to the crim-
inal history scores could have collateral consequences in the future.
186 State v. Maciel-Salcedo
conclude that the error merits correction. That case involved
a conviction for unlawful use of a weapon in which defen-
dant received the presumptive sentence of probation under
grid block 6I of the sentencing guidelines. On revocation,
as noted, the court imposed a prison sentence of 18 months’
imprisonment. As the parties agree, under OAR 213-010-
0002(1), the maximum sentence on revocation of probation
under these circumstances is six months. See, e.g., State
v. Jepsen, 292 Or App 884, 425 P3d 507 (2018) (exercising
discretion to correct plainly erroneous sentence imposed on
revocation of probation). For the reasons set forth in Jepsen,
we exercise our discretion to correct the error. Accordingly,
we remand Case No. 18CR07935 for resentencing.3
In Case No. 18CR07935, remanded for resentencing;
otherwise affirmed. In Case Nos. 19CR52718 and 20CR39285,
affirmed.
3
ORS 138.257(4)(a) does not require us to remand the other two cases for
resentencing. The cases are consolidated on appeal, but were not consolidated
below, and 18CR07935 was a probation violation in a substantively unrelated
case. See, e.g., State v. Borg, 308 Or App 161, 162-63, 480 P3d 330 (2020) (decid-
ing not to remand case consolidated on appeal when cases were substantively
unrelated, not consolidated below, and not part of a “sentencing package”);
cf. State v. Sheikh-Nur, 285 Or App 529, 540, 398 P3d 472, rev den, 361 Or 886(2017) (remanding consolidated cases for resentencing when separate charging
instruments were permissively joined below, cases were tried and sentenced
together, and counts of conviction being reversed were part of a sentencing
package).