STATE v. MILLER, 115 Or. App. 306 (1993)

838 P.2d 79

10-90-09150; CA A68351Oregon Court of Appeals.Argued and submitted June 29, 1992
Convictions affirmed; remanded for resentencing September 30, 1992 Reconsideration denied December 16, 1992 Petition for review allowed January 26, 1993 (315 Or. 311) See later issue Oregon Reports

Appeal from Circuit Court, Lane County.

Gregory Foote, Judge.

Stephen J. Williams, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.

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

Before Warren, Presiding Judge, and Riggs and Edmonds, Judges.

Page 307

WARREN, P.J.

Convictions affirmed; remanded for resentencing.

Page 308

WARREN, P.J.

Defendant challenges the sentences imposed after he pled guilty to ten charges arising from three separate incidents. He was sentenced at a single hearing. He concedes that, in the sentences relating to the first incident, the primary offense would be either his conviction for sodomy or for rape, both within grid block 9-H, with a presumptive sentence of 37 to 38 months. See
OAR 253-03-001(17). The maximum presumptive consecutive term would be 76 months. OAR 253-12-020(2)(b). He argues that the court erred when it imposed a consecutive sentence on his burglary conviction according to the criminal history scale, instead of under OAR 253-12-020.

The state concedes that, “[s]trictly applying the rule, defendant would be correct.” Under OAR 253-12-020(2)(a), after imposition of the sentence for the primary offense, consecutive sentences are calculated in column I. However, the state argues that the sentencing court erred in rating the burglary as having a crime seriousness category 8. It contends that defendant pled guilty to an indictment containing the aggravation language that he “caused or threatened to cause physical injury to [the victim],” which places the conviction in crime seriousness category 9. It contends that the court’s error resulted in a 17-month reduction of incarceration time in defendant’s favor and that, therefore, he cannot complain.[1] Under ORS 138.222(7), the state may appeal a sentence, but it did not. We will not consider its argument.

Defendant is also correct that the court erred in sentencing him on the offenses arising from the first incident and then using those convictions to increase his criminal history category from H to A. Convictions for which sentences are imposed at the same time are not counted in the criminal history, regardless of the rules governing prior criminal history. State v. Bucholz, 113 Or. App. 705, 834 P.2d 456 (1992); State v. Seals, 113 Or. App. 700, 833 P.2d 1344 (1992).

Convictions affirmed; remanded for resentencing.

Page 309