State v. MacY

*85 DE MUNIZ, J.

Defendant appeals a judgment imposing consecutive life sentences for two murder convictions. We affirm.

A jury found defendant guilty on two counts of murder. The trial court sentenced him to two life sentences, to be served concurrently. On the basis of State v. Shumway, 291 Or 153, 630 P2d 796 (1981), we vacated his sentence and remanded for resentencing, because the trial court had erroneously imposed a 25-year minimum, which had been mandatory under ORS 163.115(5). 1 State v. Macy, 56 Or App 859, 643 P2d 877 (1982). On remand, the trial court sentenced defendant to consecutive terms with a 10-year minimum. Defendant appealed, and we affirmed. On review, the Supreme Court vacated the 10-year minimum. State v. Macy, 62 Or App 477, 661 P2d 586, rev’d 295 Or 738, 671 P2d 92 (1983).

Defendant then filed a petition for post-conviction relief, claiming that he was denied effective assistance of counsel, because his lawyer on his second appeal failed to assign error to the imposition of consecutive sentences. On the basis of State v. Stockman, 43 Or App 235, 603 P2d 363 (1979), the post-conviction court found that the consecutive sentences imposed on remand were unlawful because they were more severe than his original sentence. As a remedy, the post-conviction court granted defendant a “delayed appeal from the second set of sentences imposed.” Neither party appealed from that judgment. Instead, defendant filed this appeal, challenging the judgment of the trial court that imposed the consecutive sentences.

The post-conviction court could only find that defendant was denied effective assistance of appellate counsel if it found that the imposition of consecutive sentences was unlawful. In the light of its findings, it should have vacated *86 the consecutive aspect of the sentences. 2 The court lacked authority to grant defendant another appeal. See State v. Lloyd, 109 Or App 213, 818 P2d 982 (1991). Therefore, we lack authority to do anything but affirm the trial court’s judgment imposing consecutive life sentences.

Affirmed.