State v. Sierra

Under ORS 138.222, if a case involves multiple counts of which at least one is a felony and the appellate court reverses the judgment of conviction on any count and affirms other counts, the appellate court must remand the case to the trial court for resentencing on the affirmed count or counts.

Defendant appealed a judgment from the trial court that imposed longer sentences on his three unlawful use of a weapon (“UUW”) convictions. Defendant relied on an Oregon common-law rule, which states that a criminal defendant who succeeds on appeal cannot be given a longer sentence on retrial or remand. State v. Partain, 349 Or 10, 239 P3d 232 (2010). Defendant argued that the trial court did not comply with the requirements of Partain. In addition, Defendant relied on a Supreme Court decision that precludes the trial court from modifying his sentences on the UUW convictions. State v. Smith, 323 Or 450, 918 P.2d 824 (1996). The Court held that the trial court’s decision to impose an additional 26 months sentence was not for a vindictive purpose, which is what the court in Partain requires, and therefore does comply with Partain’s requirements. The Court also held that Smith does not bar the trial court from modifying defendant’s sentences because ORS 138.222(5)(b), which was enacted after the Supreme Court’s decision in Smith, gives the trial court the statutory authority to resentence defendant on those convictions. Affirmed.