State v. Renner
State v. Renner
Opinion of the Court
Defendant appeals a judgment revoking his probation and imposing sentence on his convictions for three counts of attempted first-degree sexual abuse (Counts 1, 2, and 5) and one count of attempted first-degree sodomy (Count 6). He contends that the sentences that the court imposed are unlawful because, in each instance, the term of post-prison supervision (PPS), when added to the term of incarceration, exceeds the maximum statutory indeterminate sentence for the offense. Defendant acknowledges that he did not preserve his claim of error before the trial court but requests that we review it as plain error under ORAP 5.45(1).
ORS 144.103(1) provides that, for certain sexual offenses, including attempted first-degree sexual abuse and attempted first-degree sodomy, the defendant “shall serve a term of post-prison supervision that continues until the term of post-prison supervision, when added to the term of imprisonment served, equals the maximum statutory indeterminate sentence for the violation.” See also OAR 213-005-0002(2)(b)(C) (duration of term of PPS is as designated in ORS 144.103).
We begin with defendant’s challenge to his sentences for attempted first-degree sexual abuse. Attempted first-degree sexual abuse is a Class C felony. ORS 163.427; ORS 161.405(2)(c). Class C felonies carry a maximum indeterminate sentence of five years. ORS 161.605(3). Therefore, under ORS 144.103(1), the maximum total sentence — that is, prison term and PPS — that can lawfully be imposed on each of defendant’s convictions for attempted first-degree sexual abuse is 60 months. However, the court imposed a total sentence of 120 months on each of those convictions — specifically, two months’ imprisonment and 118 months’ PPS on Count 1; 18 months’ imprisonment (consecutive to Count 1) and 102 months’ PPS on Count 2; and 22 months’ imprisonment (consecutive to Counts 1 and 2) and 98 months’ PPS on Count 5. The state concedes that that constitutes plain error. We agree and exercise our discretion to remedy the error. See, e.g., State v. Sartin, 248 Or App 748, 274 P3d 259 (2012).
Remanded for resentencing; otherwise affirmed.
The state does not concede that the trial court erred in imposing sentence with respect to that conviction. Given our remand, the trial court will have an opportunity to address that issue in the first instance.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.