STATE v. HILL (2009)

 This case is before us on remand from the Oregon Supreme Court, which vacated our prior decision, State v. Hill, 215 Or.App. 498, 170 P.3d 1082 (2007) (Hill I ), in light of State v. Ramirez, 343 Or. 505, 173 P.3d 817 (2007), adh'd to as modified on recons., 344 Or. 195, 179 P.3d 673 (2008).  State v. Hill, 345 Or. 315, 195 P.3d 63 (2008).   In Hill I, we remanded for resentencing because the court had imposed an upward departure sentence on defendant's conviction for first-degree sexual abuse, ORS 163.427, based on judicial factfinding that “defendant had persistently been involved in similar crimes, that the victim was particularly vulnerable, and that the offense resulted in permanent injury to the victim.”  215 Or.App. at 499, 170 P.3d 1082.   That factfinding constituted an error of law apparent on the face of the record, ORAP 5.45(1), and we exercised our discretion under Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991), to correct it.   The issue on remand is whether, in light of Ramirez and State v. Fults, 343 Or. 515, 173 P.3d 822 (2007), we properly exercised our discretion under Ailes.   As explained below, we now conclude that it would not be proper to exercise discretion to correct that sentencing error.   Accordingly, we affirm.

Defendant, who was sentenced in 2001, received an upward departure sentence of 80 months for his crime, which was five months more than the mandatory minimum sentence prescribed by ORS 137.700.   He also received post-prison supervision pursuant to ORS 144.103(1), which provides, in part, that when a person has been sentenced to a term of imprisonment for violating ORS 163.427, the person “shall serve a term of post-prison supervision that continues until the term of the post-prison supervision, when added to the term of imprisonment served, equals the maximum statutory indeterminate sentence for the violation.”   In the present case, a remand for resentencing could afford defendant no meaningful relief;  he has completed serving the prison portion of his sentence, and a remand for resentencing would not affect the length of his post-prison supervision in light of the provision of ORS 144.103 quoted above.   Accordingly, we conclude that we should not exercise our discretion to correct the error.

Affirmed.

PER CURIAM.