Summary
exercising discretion to correct, as plain error, trial court's entry of a misdemeanor conviction for contempt
Summary of this case from State v. BuchananOpinion
10C40028 A146637.
2013-04-24
STATE of Oregon, Plaintiff–Respondent, v. Billy GOSTEVSKYH, Defendant–Appellant.
Appeal from Circuit Court, Marion County. Dale Perm, Judge. Jason E. Thompson and Ferder Casebeer French & Thompson, LLP, Salem, filed the brief for appellant. John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Laura S. Anderson, Senior Assistant Attorney General, filed the brief for respondent.
Appeal from Circuit Court, Marion County.
Dale Perm, Judge.
Jason E. Thompson and Ferder Casebeer French & Thompson, LLP, Salem, filed the brief for appellant. John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Laura S. Anderson, Senior Assistant Attorney General, filed the brief for respondent.
Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.
PER CURIAM.
Defendant appeals a judgment of conviction for fourth-degree assault and contempt, asserting two assignments of error: (1) that the trial court erred in admitting, as substantive evidence, the victim's hearsay statements to the investigating deputy sheriff, and (2) that the court erred in entering a misdemeanor conviction for contempt, based on defendant's violation of his pretrial release agreement, because contempt is not a crime. We reject defendant's first assignment of error without discussion. With regard to the second, the state concedes that the trial court plainly erred in entering the finding of contempt as a misdemeanor conviction. We agree and accept the state's concession; moreover, considering the interests of the parties and the ends of justice in this case, we conclude that it is appropriate to exercise our discretion to correct the error. See State v. Quade, 252 Or.App. 577, 287 P.3d 1278 (2012) (correcting as plain error the trial court's entry of misdemeanor convictions for contempt); State v. Caldwell, 247 Or.App. 372, 375 n. 1, 270 P.3d 341 (2011) (“A conviction for contempt is not a proper disposition.”); State v. Reynolds, 239 Or.App. 313, 316, 243 P.3d 496 (2010) (accepting state's concession that contempt is not a crime and that the court erred in entering a conviction for contempt).
Conviction on Count 4 reversed and remanded with instructions to enter a judgment finding defendant in contempt of court; otherwise affirmed.