State v. Lowell

270 P.3d 404 (2012) 247 Or. App. 733

STATE of Oregon, Plaintiff-Respondent,
v.
Thomas Lee LOWELL, Defendant-Appellant.

09C51793; A145894.

Court of Appeals of Oregon.

Submitted December 2, 2011. Decided January 25, 2012.

Kenneth A. Kreuscher and Portland Law Collective, LLP, filed the brief for appellant.

John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Susan G. Howe, Senior Assistant Attorney General, filed the brief for respondent.

Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and NAKAMOTO, Judge.

PER CURIAM.

Defendant was convicted of conversion, a Class C felony under ORS 163.275(2), and was sentenced to 36 months of imprisonment and 36 months of post-prison supervision. On appeal, defendant argues that the trial court plainly erred in imposing a sentence that exceeds 60 months, the maximum allowed by law for a Class C felony. ORS 161.605(3) (maximum term of an indeterminate sentence of imprisonment is, "[f]or a Class C felony, 5 years"); OAR 213-005-0002(4) ("The term of post-prison supervision, when added to the prison term, shall not exceed the statutory maximum indeterminate sentence for the crime of conviction."). The state concedes that the 72-month sentence imposed by the trial court is plainly erroneous. ORAP 5.45; Ailes v. Portland Meadows, Inc., 312 Or. 376, 823 P.2d 956 (1991). That concession is well founded. State v. Donner, 230 Or.App. 465, 469, 215 P.3d 928 (2009) (trial court plainly erred in imposing a "total sentence of 72 months—36 months' incarceration and 36 months' post-prison supervision—on a Class C felony"). For the same reasons expressed in Donner, we exercise our discretion to correct the error in this case.

Remanded for resentencing; otherwise affirmed.