State v. Elk, 240 Or. App. 432

Defendant Elk was convicted of one count of public indecency, a Class C felony under ORS 163.465(2)(b).
The trial court imposed 36 months of incarceration and 60 months of post-prison supervision, totaling beyond the statutory maximum.
State concedes the sentence was unlawful but argues error lies only in the post-prison-supervision duration under OAR rules, not in the overall sentence.
The State contends remand should amend the judgment to impose only two years of post-prison supervision, leaving incarceration unchanged.
Elk argues the entire sentence is unlawful under ORS 161.605 and that remand is necessary to correct the total term.
The appellate court agrees the sentence violates the statutory maximum and remands for resentencing, with guidance on post-prison supervision and incarceration.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the sentence exceeds statutory maximum	State concedes unlawful sentence.	Elk argues total term violates ORS 161.605.	Yes; sentence unlawful; remand for resentencing required.
Remand for resentencing should fix total term, not merely post-prison supervision	State argues only post-prison duration must be corrected under OAR rules.	Elk asserts the entire sentence must be corrected.	Remand appropriate to correct total term.
Must the remand impose the same 36 months incarceration on remand	OAR rules cap post-prison supervision, potentially allowing 36 months incarceration to stay.	No requirement to duplicate prior incarceration length on remand.	Not required; court may set appropriate incarceration length on remand.

State v. Mitchell, 235 P.3d 725 (Or. App. 2010) (same sentencing issue; plain-error review of total term)