Summary
holding that sentencing error "requires no remedial action" because the challenged 21-month sentence was concurrent to a 24-month term imposed in a separate case
Summary of this case from State v. GutierrezOpinion
10-91-00939 B, 10-91-01118 B; CA A71202 (Control), A71203 (Cases Consolidated)
Argued and submitted October 28, 1992
Affirmed March 31, 1993
Appeal from Circuit Court, Lane County.
Gregory G. Foote, Judge.
Stephen J. Williams, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.
Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause for respondent. On the brief were Charles S. Crookham, Attorney General, Virginia L. Linder, Solicitor General, and Yuanxing Chen, Assistant Attorney General, Salem.
Before Richardson, Chief Judge, and Deits and Durham, Judges.
PER CURIAM
Affirmed.
Defendant appeals the 21-month prison term imposed for his conviction of burglary in the first degree. ORS 164.225. He was sentenced on four separate cases in one sentencing proceeding. His placement on the criminal history scale was F for the first conviction. The court then used that conviction to enhance his criminal history to C. Defendant is correct that that was error. State v. Bucholz, 113 Or. App. 705, 834 P.2d 456 (1992), rev allowed 315 Or. 311 (1993); State v. Seals, 113 Or. App. 700, 833 P.2d 1344 (1992). However, the error requires no remedial action. The challenged sentence is concurrent to a 24-month term of imprisonment in a separate case. State v. Tremillion, 111 Or. App. 375, 826 P.2d 95, rev den 313 Or. 300 (1992).
Affirmed.