State v. Keller

Full title: STATE of Oregon, Plaintiff-Respondent, v. Gregory George KELLER…

Court: Court of Appeals of Oregon.

Date published: Apr 5, 2017

391 P.3d 1001 (Or. Ct. App. 2017)

391 P.3d 1001

Opinion

A158779

04-05-2017

STATE of Oregon, Plaintiff-Respondent, v. Gregory George KELLER, Defendant-Appellant.

Ernest G. Lannet, Chief Defender, and Andrew D. Robinson, Deputy Public Defender, Criminal Appellate Section, Office of Public Defense Services, filed the briefs for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.

PER CURIAM.

Ernest G. Lannet, Chief Defender, and Andrew D. Robinson, Deputy Public Defender, Criminal Appellate Section, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.

Before Tookey, Presiding Judge, and Shorr, Judge, and Linder, Senior Judge.

PER CURIAMDefendant appeals a judgment of conviction for two counts of third-degree sexual abuse involving a single victim. We write to address only defendant's second assignment of error and reject defendant's remaining assignments of error without written discussion.

In his second assignment of error, defendant argues that the trial court plainly erred by failing to merge the guilty verdicts on the two counts of third-degree sexual abuse into a single conviction. The court entered a judgment that appears to enter a conviction on both counts while also stating that the counts "are different theories of the same act and transaction and therefore, merge for sentencing per ORS 161.067." The state concedes that the trial court plainly erred in failing to enter a judgment that merged the counts into a single conviction for third-degree sexual abuse. We agree, accept the state's concession, and conclude that it is appropriate to exercise our discretion to correct the plain error for the reasons stated in State v. Camacho-Alvarez , 225 Or.App. 215, 216, 200 P.3d 613 (2009). See also State v. Van Newton , 256 Or.App. 474, 475, 300 P.3d 286, rev. den. , 354 Or. 148, 311 P.3d 525 (2013) (trial court plainly erred by entering a judgment of conviction that merged counts "for the purpose of imposing sentence" because that language fails to merge the guilty verdicts).

Convictions on Counts 1 and 2 reversed and remanded for entry of judgment of conviction for one count of third-degree sexual abuse; otherwise affirmed.