The opinion
537
Argued and submitted May 6, vacated and remanded June 3, petition for review
allowed September 17, 2020 (367 Or 75)
See later issue Oregon Reports
STATE OF OREGON,
Plaintiff-Respondent,
v.
RANDALL JAY KRAGT,
Defendant-Appellant.
Yamhill County Circuit Court
CR99474; A168649
467 P3d 830
John L. Collins, Judge.
Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Vacated and remanded.
538 State v. Kragt
PER CURIAM
Defendant appeals an amended judgment of convic-
tion for three counts of first-degree sodomy entered after a
remand from this court in a prior appeal. See State v. Kragt,
290 Or App 169, 412 P3d 275 (2018). All of defendant’s con-
victions are for sex offenses subject to the post-prison super-
vision (PPS) requirements of ORS 144.103. At issue are the
terms of PPS imposed on each count. The trial court imposed
180 months’ PPS on the first count and 140 months’ PPS on
each of the two remaining counts. Defendant contends that
these terms of PPS are erroneous in two respects. One of
defendant’s arguments is foreclosed by our case law, but the
other is one on which defendant is entitled to relief.
For one, defendant argues that ORS 144.103 required
the trial court to impose a single unified term of PPS, rather
than separate terms on each conviction. As defendant
acknowledges, that is a contention we previously rejected in
Norris v. Board of Parole, 237 Or App 1, 238 P3d 994 (2010),
rev den, 350 Or 130 (2011), and Delavega v. Board of Parole,
222 Or App 161, 194 P3d 159 (2008), and we are not per-
suaded that we should overrule that line of authority.
Defendant also contends that the trial court erred
by imposing determinate terms of PPS. That is because, for
certain sex offenses subject to ORS 144.103, including the
offenses committed by defendant, ORS 144.103 requires the
imposition of an indeterminate term of PPS, to be computed
by the Board of Parole and Post-Prison Supervision once the
amount of time a defendant actually spent incarcerated is
known:
“Except as otherwise provided in ORS 137.765 and sub-
section (2) of this section, any person sentenced to a term
of imprisonment for [committing or attempting to commit
specified sex offenses] shall serve a term of active post-
prison supervision that continues until the term of the
post-prison supervision, when added to the term of impris-
onment served, equals the maximum statutory indetermi-
nate sentence for the violation.”
ORS 144.103(1); see also State v. Burch, 134 Or App 569,
573, 896 P2d 10 (1995) (explaining the nature of the PPS
term required under ORS 144.103). The state concedes that
Cite as 304 Or App 537 (2020) 539
the terms of PPS imposed by the trial court should have
been indeterminate under ORS 144.103(1), but argues that
we should not correct any error because, in the state’s view,
the determinate terms imposed do not prejudice defendant
because, if anything, they might be too short.
We are not persuaded by the state’s harmlessness
argument. In view of ORS 144.103(1), the trial court lacked
authority to impose determinate terms of PPS; it only had
the authority to impose indeterminate terms. Where a judg-
ment contains a provision that the trial court lacked author-
ity to impose, we long have reversed and remanded for entry
of a judgment that comports with the trial court’s scope of
authority. See, e.g., State v. Potter, 108 Or App 480, 481, 816
P2d 661 (1991) (vacating term of judgment addressing con-
ditions of incarceration, because trial courts lack authority
to impose conditions of incarceration). In other words, being
subject to a judgment term that a trial court lacked the
authority to impose is a cognizable harm to a defendant. We
therefore vacate and remand for the trial court to enter a
judgment that comports with ORS 144.103.
Vacated and remanded.