Submitted: April 28, 2015.
13C42972. Marion County Circuit Court. Thomas M. Hart, Judge.
Convictions for fourth-degree assault reversed and remanded with instructions to enter judgment of conviction for one count of felony fourth-degree assault reflecting that defendant was convicted on both theories; remanded for resentencing; otherwise affirmed.
Peter Gartlan, Chief Defender, and David Sherbo-Huggins, 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, Senior Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.
[271 Or.App. 677] FLYNN, J.
In this criminal appeal, defendant contends that the trial court's guilty verdicts on two counts of felony assault in the fourth degree should have been merged into a single conviction. The state's primary argument on appeal is that defendant's claim of error is not reviewable, because the trial court imposed sentences on both convictions that are within the presumptive sentence range under the sentencing guidelines. We disagree and remand with instructions to enter a single conviction for fourth-degree assault, and for resentencing, but otherwise affirm.
The case arises out of a domestic violence episode that resulted in defendant being charged with, among other crimes, two counts of felony fourth-degree assault--one count for committing assault after having previously been convicted of assaulting the same victim, ORS 163.160(3)(a), and the other count for committing assault in the immediate presence of the victim's minor child, ORS 163.160(3)(c). Defendant pleaded guilty to both assault counts, and the trial court accepted that plea.
During sentencing, the court asked the prosecutor whether the counts arose from incidents on separate days, and the prosecutor replied, " They were both the same night. There's two different theories. It's a minor child and then a prior conviction on [the victim]." However, the court did not merge the convictions; it imposed concurrent, presumptive sentences on each count.
On appeal, defendant argues that ORS 161.067 does not authorize two separate convictions for felony fourth-degree assault in this case. The state acknowledges that defendant raised the issue below and " that the bare-bone facts set forth as the factual basis for the plea *** do not clearly establish a sufficient basis under ORS 161.067(3) for entry of separate convictions."
The state contends, however, that defendant's claim of error is unreviewable under ORS 138.222. That statute governs the review of sentences imposed for felony [271 Or.App. 678] convictions. The state points out that our decision in State v. Davis, 265 Or.App. 425, 438, 335 P.3d 322 (2014), rev den, 356 Or. 837, 346 P.3d 496 (2015), described the defendant's challenge to the entry of separate--rather than merged--convictions as an appeal " based on the sentence" and, therefore, reviewable as specified in ORS 138.222. The state acknowledges our conclusion in Davis --that a challenge to the failure to merge convictions falls within the scope of ORS 138.222(4)(a), which permits appellate court review of a claim that " [t]he sentencing court failed to comply with requirements of law in imposing or failing to impose a sentence[.]" 265 Or.App. at 438. But Davis did not discuss ORS 138.222(2)(a), which the state views as precluding review ...