FILED: March 21, 2007
IN THE COURT OF APPEALS OF THE STATE OF OREGON
STATE OF OREGON,
Lincoln County Circuit Court
Thomas O. Branford, Judge.
Submitted on record and briefs February 2, 2007.
Harrison Latto filed the brief for appellant.
Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jonathan H. Fussner, Attorney-in-Charge, Criminal Appeals Unit, filed the brief for respondent.
Before Edmonds, Presiding Judge, and Wollheim, Judge, and Deits, Judge pro tempore.
Defendant was convicted of four counts of first-degree sexual abuse, ORS 163.427, and one count of unlawful sexual penetration, ORS 163.411. After concluding that some of the counts of first-degree sexual abuse "merge[d] for purposes of sentencing," the trial court sentenced defendant to 100 months in prison on the count of unlawful sexual penetration and 75 months in prison on two counts of first-degree sexual abuse. The court also imposed a term of post-prison supervision of 40 years.
On appeal, defendant advances two assignments of error. First, defendant argues that his sentence is plainly erroneous because the post-prison supervision period of 40 years exceeds the maximum allowable indeterminate sentence of 30 years. While this case was pending on appeal, the trial court granted defendant's motion under ORS 138.083 to correct the judgment with respect to the period of post-prison supervision. Thus, defendant's first assignment of error is moot.
In his second assignment of error, defendant argues that the trial court committed plain error by imposing consecutive sentences based on facts that were not admitted by defendant or found by a jury. We rejected a similar argument in State v. Fuerte-Coria, 196 Or App 170, 100 P3d 773 (2004), rev den, 338 Or 16 (2005).