State v. Munion

Defendant was convicted on three counts of sexual abuse in the second degree, which is a Class C felony. ORS 163.425. He received an upward departure sentence of 72 months on one of the counts based in part on a finding of persistent involvement in similar offenses. Defendant makes two challenges to the upward departure sentence, both of which are well taken.

First, defendant argues that the 72-month sentence is unlawful because it exceeds the statutory maximum indeterminate sentence of five years for a Class C felony. ORS 161.605; OAR 213-008-0003(2). Defendant is correct. Although the error…