State v. SAVELIEFF

265 P.3d 84 (2011) 246 Or. App. 324

STATE of Oregon, Plaintiff-Respondent,
v.
Fred SAVELIEFF, Defendant-Appellant.

A145432; 200917962.

Court of Appeals of Oregon.

Submitted September 20, 2011. Decided October 26, 2011.

Garrett A. Richardson and Multnomah Defenders, Inc., filed the brief for appellant.

John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and DUNCAN, Judge.

PER CURIAM.

Defendant appeals a judgment of conviction for, inter alia, felony driving under the influence of intoxicants (Count 1), ORS 813.010, which is a Class C felony with a maximum indeterminate sentence of 60 months, ORS 161.605. On Count 1, the trial court sentenced defendant to 48 months' imprisonment and 24 months' post-prison supervision (PPS), noting that, "if the length of incarceration for this count plus the length of post prison supervision exceeds the statutory maximum indeterminate sentence described in ORS 161.605, then the length of post-prison supervision is hereby reduced to the extent necessary to conform the total sentence length to the statutory maximum." Defendant did not object to that sentence. On appeal, defendant contends that his sentence on Count 1 is erroneous because his sentence exceeds 60 months and the term of post-prison supervision is indeterminate. We conclude that the PPS term of defendant's sentence was indeterminate and, thus, constituted plain error, ORAP 5.45(1), in light of our decision in State v. Mitchell, 236 Or.App. 248, 235 P.3d 725 (2010). Further, for the reasons explained in State v. Gutierrez, 243 Or.App. 285, 259 P.3d 951 (2011), we exercise our discretion under Ailes v. Portland Meadows, Inc., 312 Or. 376, 382 n. 6, 823 P.2d 956 (1991), to correct that error.

Sentence on Count 1 vacated; remanded for resentencing; otherwise affirmed.