S057794, Opinion — State v. Sierra

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On respondent on review's petition for reconsideration filed January 11, 2011;
considered and under advisement on January 26,* petition for reconsideration
allowed; former opinion modified and adhered to as modified February 19, 2011

STATE OF OREGON,
Respondent on Review,
v.
JOAQUIN SIERRA,
Petitioner on Review.
(TC 05C40355; CA A136120; SC S057794)
247 P3d 759

En Banc

Michael A. Casper, Assistant Attorney General, Salem,
filed the petition for reconsideration. With him on the peti-
tion were John R. Kroger, Attorney General, and Mary H.
Williams, Solicitor General.

No appearance contra.

DURHAM, J.

The petition for reconsideration is allowed. The former
opinion is modified and adhered to as modified.

\* 349 Or 506, 254 P3d 149 (2010); on review from the Court of Appeals, 228 Or
App 149, 206 P3d 1153 (2009).

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# DURHAM, J.

The state seeks reconsideration of this court's opin-
ion in State v. Sierra, 349 Or 506, 254 P3d 149 (2010). We
allow the petition for reconsideration, modify our earlier
opinion as described below, and, as modified, adhere to that
opinion.

In this case, a jury convicted defendant of a number
of crimes, including one count of kidnapping in the first
degree and two counts of kidnapping in the second degree.
On review, defendant challenged the sufficiency of the evi-
dence supporting his three kidnapping convictions. This
court affirmed defendant's conviction for first-degree kidnap-
ping but reversed the two convictions for second-degree kid-
napping. Id. at 520. This court explained that the state intro-
duced sufficient evidence to prove the charge of kidnapping
in the first degree, but held that

"the state introduced insufficient evidence to prove the two
charges of kidnapping in the second degree. As a result, the
trial court erred in denying defendant's motion for judg-
ment of acquittal on those charges. We reverse the trial
court's judgment as to those two charges and remand the
case to the trial court so that that court can enter a judg-
ment of acquittal as to those charges."

Id. at 518 (footnote omitted). Consistent with that conclusion,
the final paragraph of our opinion stated:

"The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for
further proceedings."

Id. at 520.

The state seeks reconsideration, requesting that we
clarify the scope of our instructions on remand. The state
asserts that, in light of our instruction to the trial court to
enter a judgment of acquittal as to the second-degree kidnap-
ping charges, it is not clear whether the "further proceedings"
on remand include resentencing on defendant's remaining
convictions. We allow reconsideration in order to clarify the
scope of our instructions on remand.

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In a felony case, when an appellate court reverses
one or more of a defendant's convictions but also affirms one
or more convictions, ORS 138.222(5)(b) mandates that the
appellate court remand for resentencing on the remaining
convictions.1 ORS 138.222(5)(b) provides:

"If the appellate court, in a case involving multiple
counts of which at least one is a felony, reverses the judg-
ment of conviction on any count and affirms other counts,
the appellate court shall remand the case to the trial court
for resentencing on the affirmed count or counts."

Our opinion in this case did not limit the scope of "further
proceedings" on remand to exclude resentencing. Nonethe-
less, because we agree with the state that ORS 138.222(5)(b)
requires this court to remand for resentencing in this case,
we will make our instructions on remand more explicit.
Accordingly, we withdraw the final dispositional paragraph
of our previous opinion and insert in its place the following
paragraph:

"The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for
entry of judgment of acquittal on the two second-degree kid-
napping counts, for resentencing on the remaining counts,
and for further proceedings."

The petition for reconsideration is allowed. The for-
mer opinion is modified and adhered to as modified.

1 We note that it appears that defendant already may have served the sen-
tences for some of his remaining convictions. We are not presented with the issue
of how that fact may affect the trial court's authority on resentencing. See State v.
Smith, 323 Or 450, 454, 918 P2d 824 (1996) (holding that "a sentencing court lacks
the authority to modify a valid sentence once the original sentence * * * has been
served" in its entirety). We, therefore, express no opinion on that issue.