STATE v. McCOY, 152 Or. App. 393 (1998)

952 P.2d 572

STATE OF OREGON, Respondent, v. BOBBY EUGENE McCOY, Appellant.

96-04-32820; CA A95406Oregon Court of Appeals.Argued and submitted November 26, 1997
Affirmed February 4, 1998 Petition for review denied April 14, 1998 (327 Or. 83)

Appeal from Circuit Court, Multnomah County.

Robert Redding, Judge.

Diane L. Alessi, Chief Deputy Public Defender, argued the cause for appellant. With her on the brief was Sally L. Avera, Public Defender.

Ann F. Kelley, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.

Before Riggs, Presiding Judge, and Landau and Leeson, Judges.

PER CURIAM

Affirmed.

Page 394

PER CURIAM

Defendant appeals his sentence for assault in the third degree with a firearm. ORS 163.165. The trial court sentenced defendant to five years incarceration, with a two-year period of post-prison supervision (PPS). Defendant assigns error to that sentence, arguing that, under the sentencing guidelines, his total period of incarceration and PPS may not exceed the maximum indeterminate sentence for third degree assault, which is five years. ORS 161.605(3); OAR 213-05-002(4).

Defendant’s argument is unpreserved. Nevertheless, he urges us to review it as an error apparent on the face of the record. ORAP 5.45(2). We decline to do so. To be apparent on the face of the record, a trial court’s legal error must be “obvious” and “not reasonably in dispute.” State v. Brown, 310 Or. 347, 355, 800 P.2d 259 (1990). That requirement is not met here. The court was confronted with apparently inconsistent sentencing mandates; it was required to impose a sentence of five years, ORS 161.610(4)(a), required to impose PPS, OAR 213-05-002(1), and was directed that the total prison time and PPS not exceed the maximum indeterminate sentence for the crime of conviction, OAR 213-05-002(4), which is five years. ORS 161.605(3). Our cases do not explain how to balance those conflicting requirements. The issue is reasonably in dispute, and, accordingly, the trial court’s sentence is not error apparent on the face of the record. Brown, 310 Or at 355.

Affirmed.

Page 395