State v. Shafer

PER CURIAM

Defendant was convicted of burglary in the first degree and theft in the first degree. ORS 164.225; ORS 164.015. The sentencing court imposed a departure sentence of 60 months on the burglary conviction and a consecutive sentence of 30 days incarceration on the theft conviction, which is within the presumptive sentence.

Defendant failed to preserve his claims of error that the departure sentence was not supported by substantial and compelling reasons and that the court failed to make the appropriate findings before imposing consecutive sentences. Citing State v. Haydon, 113 Or App 205, 832 P2d 457 (1992), he also argues that ORS 137.635 does not apply to felonies committed on or after November 1,1989, and that, therefore, the court erred in imposing a sentence pursuant to that statute.

On reconsideration, we withdrew the opinion in Hay-don and held that ORS 137.635 should be read consistently with the guidelines, and that the maximum term is the one under the guidelines. State v. Haydon, 116 Or App 347, 842 P2d 410 (1992). Defendant’s 60-month term of imprisonment was a durational departure. The provisions of ORS 137.635 that were included in the sentence are that defendant will serve the sentence without parole, temporary leave or reduction in sentence.¹ There was no error.

Affirmed.

1 The Board of Parole and Post-Prison Supervision has no general authority to parole an inmate sentenced under the guidelines. ORS 144.050; 1989 Or Laws, ch 790, § 28.