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State v. Baker

Court of Appeals of Oregon

September 17, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
BYRON RAY BAKER, Defendant-Appellant

Submitted August 19, 2014

Umatilla County Circuit Court CF120067. Christopher R. Brauer, Judge.

Peter Gartlan, Chief Defender, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.

Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.

OPINION

[265 Or.App. 501] HADLOCK, J.

Defendant pleaded guilty to one count of second-degree burglary and to one count of first-degree theft, both Class C felonies. The trial court accepted the guilty pleas and entered a judgment reflecting that defendant had been convicted of both counts. Defendant appeals that judgment, arguing that the trial court erred by refusing to merge the

Page 548

two guilt determinations into a single conviction. In response, the state argues that this court lacks authority to review defendant's claim of error because it falls outside the scope of issues that are reviewable on appeal from a guilty plea. On the merits, the state argues that the trial court correctly declined to merge the two guilt determinations into a single conviction. We conclude that we have authority to review defendant's claim of error and, for the reasons set out below, we affirm the trial court's judgment.

The state's argument that we lack authority to review defendant's merger argument is defeated by our recent decision in State v. Davis, 265 Or.App. 425, 335 P.3d 322 (Sept 10, 2014). The defendant in that case pleaded no contest to two felony charges and argued, after the court accepted his pleas, that the trial court should merge the two guilt determinations into a single conviction. Id. at 431). The state moved to dismiss the appeal for lack of jurisdiction. We denied the motion, concluding that we had both jurisdiction over the defendant's appeal and authority to review his merger argument under ORS 138.222(4) and (7). Id. at 427). Under Davis, we have authority to review defendant's merger argument in this case.

We proceed to the merits. The two counts to which defendant pleaded guilty were charged as follows:

" Count 1: BURGLARY IN THE SECOND DEGREE * * *
" * * * *
" Count 3: THEFT IN THE FIRST DEGREE--Value $1,000 or ...

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