State v. Pryor

310 Or.App. 403

484 P.3d 1123

STATE of Oregon, Plaintiff-Respondent,

v.John Henry Ross PRYOR, aka John Henryross Pryor, Defendant-Appellant.

A171601

Court of Appeals of Oregon.

Submitted January 8, 2021.

April 7, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Daniel C. Bennett, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

DeVORE, P. J.

After an appeal in which we reversed one of defendant's convictions, affirmed others, and remanded for resentencing, State v. Pryor , 294 Or. App. 125, 430 P.3d 197 (2018), the trial court conducted a resentencing hearing and, ultimately, entered a judgment on June 13, 2019, containing defendant's sentence. Subsequent to entry of that judgment, the trial court entered two amended judgments, in February and March 2020. On appeal, defendant raises one assignment of error in which he challenges the trial court's amended judgment increasing his sentence on Count 6, second-degree assault, ORS 163.175.¹ For the reasons explained below, we vacate the amended judgments entered in February 2020 and March 2020 and remand for further proceedings.

As relevant to this appeal, at defendant's resentencing hearing, the state asked the court to, in part, impose a sentence of 144 months’ imprisonment on the assault conviction and defendant asked for imposition of 70 months’ imprisonment. The trial court stated, in part:

"[O]n Count 6, I am finding aggravating enhancement factors of permanent injury to the victim, actual violence toward the victim, use of a weapon, being on parole at the time of the offense, repeated terms of supervision, and incarceration have failed to deter the Defendant. Also, there's persistent involvement in criminal behavior. So I will impose a departure, upward departure sentence 144 months."

Defendant objected to that sentence on the ground that it exceeded the maximum allowable by law, and stated, "I think you can only max him out at 120 months and no post-prison supervision." The court stated its intention to follow the state's recommendation but invited the parties to provide additional briefing on that point. Later that same day, the court entered a "temporary sentencing order" that imposed, by upward departure, 120 months’ imprisonment on the assault conviction.

Approximately three weeks later, on June 13, 2019, a judgment was entered that imposed sentence in accordance with the sentence that the court had imposed orally at the end of the resentencing hearing, with the exception that it imposed only 70 months’ imprisonment on Count 6. That sentence was described in the judgment as an "Upward Durational Departure."

On February 7, 2020, the trial court entered an amended judgment in which it changed defendant's sentence on Count 6 from 70 months’ imprisonment to 120 months’ imprisonment. Defendant contends that the trial court erred in issuing the amended judgment, because it did so without notice to him or an opportunity to be heard, violating his statutory and constitutional rights to be present. The state concedes that the record does not disclose that defendant was notified in advance or given an opportunity to be heard. Therefore, the state agrees that the trial court erred when it entered an amended judgment without notice to the defendant of the proposed action and an opportunity to be heard. We agree and accept the state's concession. See State v. Nobles , 264 Or. App. 580, 333 P.3d 1077 (2014) (correcting error when trial court failed to provide written notice before amending judgment).

The parties disagree as to the proper disposition. Defendant argues that, because the trial court erred in modifying his sentence and because he was already serving a lawfully imposed sentence, we should reverse and remand with instructions for the trial court to reinstate the June 2019 judgment with its 70-month sentence. Defendant relies on State v. Rossi , 216 Or. App. 168, 171 P.3d 1031 (2007). In Rossi , the trial court had erred by substantively modifying the defendant's sentence in an amended judgment that it entered without notice to defendant, without a hearing, and without a waiver from defendant. Id. at 169, 171 P.3d 1031. Because the defendant was already serving the sentence, we vacated the amended judgment and remanded with instructions to reinstate the original judgment. Id .

The state contends, on the other hand, that we should remand for further proceedings, arguing that the court has authority under ORS 137.172 to amend the June 2019 judgment to correct what was likely a clerical error. ORS 137.172(1) provides:

"The trial court retains authority after entry of judgment of conviction or a supplemental judgment, including during the pendency of an appeal, to modify the judgment, including the sentence, to correct any arithmetic or clerical errors or to delete or modify any erroneous term in the judgment. The court may correct the judgment either on the motion of one of the parties or on the court's own motion after written notice to all of the parties."

We explained in State v. Johnson , 242 Or. App. 279, 285, 255 P.3d 547, rev. den. , 350 Or. 530, 257 P.3d 1020 (2011), that "Oregon subscribes to the common-law rule that, once a valid sentence is executed—that is, once a defendant begins serving it—the trial court loses jurisdiction over the case and, thus, power to modify the sentence." We also explained that the legislature had created an exception to that rule in former ORS 138.083 (2007), repealed by Or. Laws 2017, ch. 529, § 26, which permitted a trial court to, among other...