FILED: December 9, 1998

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

DONIECA ROCHELLE McGHEE,

Appellant.

(95-04-32421; CA A92410)

En Banc*

Appeal from Circuit Court, Multnomah County.

Kimberly C. Frankel, Judge.

Argued and submitted December 23, 1997; resubmitted en banc September 16, 1998.

Mary M. Reese, Deputy Public Defender, argued the cause for appellant. With her on the brief was Sally L. Avera, Public Defender.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.

PER CURIAM

Affirmed.

Warren, J., dissenting.

*Linder, J., not participating.


DESIGNATION OF PREVAILING PARTY AND AWARD OF COSTS

Prevailing party: Respondent

[ ] No costs allowed.

[ ] Costs allowed, payable by:

[ ] Costs allowed, to abide the outcome on remand, payable by:


PER CURIAM

Defendant was convicted of assault in the second degree. The trial court imposed a sentence of 70 months pursuant to Measure 11 and a post-prison supervision period of 36 months. On appeal, defendant argues that the Measure 11 sentence imposed for the crime of assault in the second degree offends the proportionality provision of Article I, section 16, of the Oregon Constitution and that Measure 11 violates her federal constitutional rights to equal protection, to be free from cruel and unusual punishments, to counsel, to allocution, and the guarantee to a republican form of government. For the reasons stated in State v. Ferman-Velasco, ___ Or App ___, ___ P2d ___ (December 9, 1998), we affirm the trial court.

Affirmed.

WARREN, J., dissenting.

I dissent for the reasons stated in my dissent in State v. Ferman-Velasco, ___ Or App ___, ___ P2d ___ (December 9, 1998).

Armstrong and Wollheim, JJ., join in this dissent.


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