STATE v. CLAGGETT (2011)

Defendant pleaded guilty to coercion with a firearm (Count 1), ORS 163.275, unlawful use of a weapon with a firearm (Count 2), ORS 166.220, and misdemeanor fourth-degree assault (Count 4), ORS 163.160, and appeals the resulting judgment of conviction.¹ A detailed recitation of the facts would not benefit the bench, the bar, or the public. It is sufficient to note that the court imposed a 60–month firearm minimum sentence, ORS 161.610, on Count 1 and then imposed a second firearm minimum sentence on Count 2, 36 months of which was to run concurrently with the sentence on Count 1 and 24 months of which was to run consecutively. On appeal, defendant contends that the trial court erred in imposing two 60–month firearm minimum sentences. Although defendant did not preserve that challenge to the sentences, he contends that we should exercise our discretion to review them as plain error. ORAP 5.45; Ailes v. Portland Meadows, Inc., 312 Or 376, 382 n 6, 823 P.2d 956 (1991).

The state concedes that the trial court committed plain error under State v. Hardesty, 298 Or 616, 695 P.2d 569 (1985), and contends that we should exercise our discretion to remedy the error. We agree and accept the state's concession, and, for the reasons stated in State v. Medina, 234 Or.App. 684, 691, 228 P3d 723 (2010), exercise our discretion to remedy the error.²

In doing so, we note that the circumstances of this case are distinguishable from those in State v. Diaz–Guillen, 245 Or.App. 110, ––– P3d –––– (2011). There, after imposing a firearm minimum sentence on one count, the trial court imposed two additional firearm minimum sentences on two other counts. Although we agreed with the state's concession that the trial court erred in imposing the two additional firearm minimum sentences, we declined to exercise our discretion to remedy the error because the erroneous sentences ran concurrently with other lawful sentences such that any error was harmless and the defendant did not assert that future collateral consequences might arise from those erroneous sentences. Here, in contrast, 24 months of the firearm minimum sentence imposed on Count 2 runs consecutively to the firearm minimum sentence imposed on Count 1. Accordingly, the error in this case is not harmless.

Remanded for resentencing; otherwise affirmed.

FOOTNOTES

1.  The other charges against defendant were dismissed.

2.  Our disposition obviates the need to address defendant's contention that the trial court's imposition of post-prison supervision on Counts 1 and 2 was also erroneous.

PER CURIAM.