State v. Hostetter

865 P.2d 485 (1993) 125 Or. App. 491

STATE of Oregon, Respondent,
v.
Richard Keith HOSTETTER, Appellant.

CR90-551A; CA A74680.

Court of Appeals of Oregon.

Argued and Submitted November 30, 1993. Decided December 22, 1993.

Ingrid A. MacFarlane, Deputy Public Defender, argued the cause for appellant. With her on the brief was Sally L. Avera, Public Defender.

Timothy A. Sylwester, Asst. Atty. Gen., argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen.

Before ROSSMAN, P.J., and De MUNIZ and LEESON, JJ.

De MUNIZ, Judge.

Defendant was convicted of, inter alia, murder, ORS 163.115(1)(a), and sentenced to life in prison with a 25-year minimum term. After defendant filed his appeal challenging the imposition of sentence under ORS 163.115(3), the Supreme Court decided State v. Morgan, 316 Or. 553, 856 P.2d 612 (1993). Under Morgan, defendant's 25-year minimum term under ORS 163.115(3)(b) and (c) is valid.

The state argues that defendant's life term is also valid, because the court made departure findings that defendant did not challenge, and defendant did not argue that a "life sentence" could not be imposed as a departure sentence under ORS 163.115(3)(a). Therefore, the state contends, under State v. Farmer, 317 Or. 220, 856 P.2d 623 (1993), we may not review the life term.

Farmer does not preclude review here. In Farmer,

"the trial court applied the sentencing guidelines and decided, based on aggravating factors, to impose a departure sentence of life imprisonment with a 25-year minimum sentence pursuant to ORS 163.-115(3). Defendant did not object." 317 Or. at 222, 856 P.2d 623. (Footnote omitted.)

Although it is not entirely clear how the Supreme Court viewed the life sentence, see State v. Petty, 124 Or.App. 574, 576, 863 P.2d 503 (1993), it declined to review that sentence, because the defendant in Farmer had not objected.^[1]

Here, the court clearly imposed sentence under ORS 163.115, and defendant objected. The aggravating factors cited by the court were alternatively given in order to support a departure had it imposed sentence under the guidelines. However, it did not impose a departure sentence. We may review defendant's challenge to the life term. Under State v. Morgan, supra, the life term is reversible error. We remand for resentencing with instructions to delete the sentence of life imprisonment and to impose a judgment for post-prison supervision for the remainder of defendant's life under OAR 253-05-004. Defendant's 25-year prison term is lawful.

Convictions affirmed; remanded for resentencing.

NOTES

[1] The court in Farmer apparently reviewed the 25-year minimum, because it upheld that sentence on the basis of State v. Morgan, supra.