Opinion
10CR0512 A147475.
2013-02-27
STATE of Oregon, Plaintiff–Respondent, v. Russell Lewis DUDLEY, Defendant–Appellant.
Coos County Circuit Court. Michael J. Gillespie, Judge. Peter Gartlan, Chief Defender, and Louis R. Miles, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.
Coos County Circuit Court.
Michael J. Gillespie, Judge.
Peter Gartlan, Chief Defender, and Louis R. Miles, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.
Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.
PER CURIAM.
Defendant was convicted, after a jury trial, of two counts of unauthorized use of a vehicle (UUV) (Counts 2 and 3), two counts of possession of a stolen motor vehicle (PSV) (Counts 6 and 7), and one count of trafficking in vehicles with destroyed or altered identification numbers (Count 9). In his first two assignments of error, defendant contends, relying on State v. Noe, 242 Or.App. 530, 256 P.3d 166 (2011), that the trial court plainly erred in failing to merge (1) the UUV and PSV verdicts in Counts 2 and 6, which involved the same vehicle, into a single conviction and (2) the UUV and PSV verdicts in Counts 3 and 7, which also involved the same vehicle (but a different one from that implicated in Counts 2 and 6), into a single conviction. The state acknowledges that Noe governs, but contends that it was wrongly decided. As we recently did in State v. Joynt, 254 Or.App. 415, 294 P.3d 534 (2012), we reject that proposition and conclude that, as in Noe, all of the elements of PSV are subsumed into the elements of UUV in this case. Accordingly, each pair of defendant's convictions for PSV and UUV should have merged, and we reverse and remand for the trial court to make that correction and for resentencing. ORS 138.222(5).
Given that disposition, we need not address defendant's third assignment of error, in which he raises an unpreserved contention that the trial court erred in imposing restitution.
Reversed and remanded with instructions to merge defendant's convictions on Counts 2 and 6 into a single conviction for unauthorized use of a vehicle, to merge defendant's convictions on Counts 3 and 7 into a single conviction for unauthorized use of a vehicle, and for resentencing; otherwise affirmed.