State v. Gutierrez
243 Or. App. 285
Or. Ct. App.2011Background
- Defendant Gutierrez appealing two probation-revocation judgments arising from coercion (ORS 163.275) and felony fourth-degree assault (ORS 163.160(3)) in Case XXXXXXXXX.
- A separate misdemeanor fourth-degree assault conviction (ORS 163.160) in Case XXXXXXXXX was consolidated for appeal.
- The trial court imposed a 36-month incarceration plus 36-month post-prison supervision (PPS) for the coercion conviction, with a clause reducing PPS if total sentence exceeded the statutory maximum.
- The court relied on Mitchell to treat PPS as potentially indeterminate, creating a potential unlawful total sentence.
- The State conceded Mitchell control; the Court remanded for resentencing on one case and affirmed the other.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is PPS legally indeterminate under Mitchell? | Gutierrez | Gutierrez | Indeterminate PPS; plain error; remand for resentencing |
| Was there sufficient evidence that Gutierrez failed to participate in a mental health evaluation? | State | Gutierrez | Evidence insufficient; properly rejected |
| Does the total sentence exceed the statutory maximum under ORS 161.605? | State | Gutierrez | Mitchell controls; total/each component must be determinate; PPS indeterminate |
Key Cases Cited
- State v. Mitchell, 236 Or.App. 248 (2010) (total sentence and PPS must be determinate; PPS may reduce total sentence)
- State v. Elk, 240 Or.App. 432 (2011) (exercising discretion to correct unpreserved challenges to sentences in light of Mitchell)
- Ailes v. Portland Meadows, Inc., 312 Or. 376 (1991) (Ailes discretion to correct unlawful sentences)
- State v. Wierson, 216 Or.App. 318 (2007) (Ailes discretion to remedy unlawful sentence where state has no interest in enforcement)