Opinion
A178026
12-13-2023
STATE OF OREGON, Plaintiff-Respondent, v. TIMOTHY EUGENE OARD, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Daniel C. Bennett, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Adam Holbrook, Assistant Attorney General, fled the brief for respondent.
This is a Nonprecedential Memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
Submitted November 20, 2023
Linn County Circuit Court 21CR40025; Thomas McHill, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Daniel C. Bennett, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Adam Holbrook, Assistant Attorney General, fled the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and Hellman, Judge.
ORTEGA, P.J.
Defendant appeals a judgment regarding his convictions and sentences on one count of felony fourth-degree assault, ORS 163.160, and five counts of tampering with a witness, ORS 162.285. He first argues on appeal that the trial court erred in failing to acquit him on the tampering with a witness charges because the state adduced insufficient evidence that defendant, during telephone calls he made to the victim from jail, induced or attempted to induce her to offer false testimony or unlawfully withhold testimony regarding the assault. After review of the record, we conclude that defendant did not preserve the arguments he now advances on appeal. We therefore reject his challenges to the sufficiency of the evidence without further discussion.
Defendant also argues, and the state concedes, that the trial court plainly erred in imposing sentence on the assault conviction. Fourth-degree assault is a Class C felony, for which the maximum indeterminate sentence is five years. ORS 161.605. Here, the court imposed a five-year prison sentence for the assault, as well as a two-year post-prison supervision term, which when combined, exceed the maximum indeterminate sentence for the offense. The judgment provides that the "[incarceration time served and the Post Prison total combined length shall not exceed [five] years," but as we explained in State v. Stalder, 205 Or.App. 126, 133 P.3d 920, rev den, 340 Or. 673 (2006), that approach to sentencing creates an impermissibly indeterminate post-prison supervision term. Given the gravity of the error, we exercise our discretion to correct it. See State v. Mitchell, 236 Or.App. 248, 255-56, 235 P.3d 725 (2010) (explaining why such an error is not harmless and exercising discretion to correct error under similar circumstances).
Remanded for resentencing; otherwise affirmed.