STATE v. DILLON (2020)

This is a criminal appeal in which defendant challenges the probation revocation judgment that imposes a 36-month post-prison supervision (PPS) term. Defendant was convicted of strangulation and placed on probation. The trial court categorized defendant as a 6-B on the Oregon Felony Sentencing Guidelines. After defendant violated the terms of his probation, the court sentenced defendant to 24 months’ imprisonment, followed by 36 months’ PPS, notwithstanding the fact that, under the sentencing guidelines, the PPS term for category 6 crimes is 24 months. See OAR 213-005-0002(2)(a). Defendant contends that the court plainly erred in imposing 36 months’ PPS because that term exceeds the applicable PPS term allowed under the sentencing guidelines.

The state concedes that the trial court committed plain error in imposing a PPS term that exceeds the applicable PPS term allowed under the sentencing guidelines. See OAR 213-005-0002(1) (departures on the duration of PPS are not allowed). Further, the state concedes that we have previously exercised our discretion to correct such an error in circumstances that are indistinguishable from this case. See State v. Glazier, 266 Or. App. 824, 825-26, 340 P.3d 90 (2014) (exercising discretion to correct sentencing error when court imposed a PPS term that exceeded the duration of PPS allowed under sentencing guidelines). Finally, the state concedes that, under those circumstances, we should remand for resentencing in this case for the trial court to reduce the PPS term to 24 months.

We agree, accept the state's concession, and, for the reasons stated in State v. Delgado, 239 Or. App. 435, 438-40, 245 P.3d 170 (2010), rev. den., 350 Or. 423, 256 P.3d 1097 (2011), exercise our discretion under ORAP 5.45(1) to review and correct the PPS term as error apparent on the record. See Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991) (court has discretion to review unpreserved error of law apparent on the record).

Reversed and remanded for resentencing; otherwise affirmed.

PER CURIAM