Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Sheikh-Nur

Court of Appeals of Oregon

May 17, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
YUSUF DAHIR SHEIKH-NUR, Defendant-Appellant.

          Argued and submitted December 19, 2016.

         Washington County Circuit Court C130331CR, C130849CR, C131055CR, D125301M; Eric Butterfeld, Judge.

          Meredith Allen, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services. Yusuf Dahir Sheikh-Nur fled the supplemental brief pro se.

          Peenesh H. Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summary:

         Defendant appeals judgments in four cases that were consolidated for trial under ORS 132.560(2); the appeals were also consolidated. He contends, among other things, that the trial court plainly erred in failing to merge the verdicts for the crimes of unlawful delivery of methamphetamine to a minor and unlawful delivery of methamphetamine in one of the four consolidated cases and, consequently, that the convictions in all of the consolidated cases must be remanded for resentencing under ORS 138.222(5)(b). The state concedes the error, but argues that resentencing is not required, and, even if it is, it must be limited to a resentencing of the convictions reflected in the judgment in which the merger error occurred.

         Held:

         The verdicts for unlawful delivery of methamphetamine to a minor and unlawful delivery of methamphetamine should have merged, and it is appropriate for the Court of Appeals to correct that plain error. A remand for resentencing under ORS 138.222(5)(b) requires resentencing of convictions on all charges tried together with a charge for which a conviction is reversed on appeal, including charges consolidated for trial after the initial filing of separate charging instruments.

         In Case No. C130849CR, convictions on Counts 5 and 6 reversed and remanded for entry of a judgment of conviction for one count of unlawful delivery of methamphetamine to a minor; remanded for resentencing; otherwise affirmed. In Case Nos. C130331CR, C131055CR, and D125301M, remanded for resentencing; otherwise affirmed.

          ARMSTRONG, P. J.

         Defendant appeals judgments in four consolidated cases-Washington County Case Nos. C130331CR, C130849CR, C131055CR, and D125301M-in which he was convicted of multiple sexual offenses committed against a series of victims, and of other crimes. He raises two assignments of error on appeal, both of which pertain to Case No. C130849CR.[1] In his second assignment of error, he contends that the trial court plainly erred in that case in failing to merge guilty verdicts for unlawful delivery of methamphetamine to a minor (Count 5) and unlawful delivery of methamphetamine (Count 6). The state concedes the error, and we agree. We also conclude that it is appropriate for us to exercise our discretion to correct the error. Accordingly, we reverse defendant's convictions on Counts 5 and 6 in Case No. C130849CR and remand for entry of a judgment of conviction for one count of unlawful delivery of methamphetamine to a minor. As we explain below, because that disposition also requires us to remand the case for resentencing under ORS 138.222(5)(b), we need not address defendant's first assignment of error, in which he contends that the trial court also plainly erred in failing to merge guilty verdicts for three counts of first-degree sexual abuse into a single conviction for that offense, a proposition that the state disputes. Instead, the trial court will have the opportunity to address that unpreserved issue in the first instance on remand. See State v. Sauceda. 236 Or.App. 358, 362, 239 P.3d 996 (2010) (declining to address unpreserved argument that the trial court should have merged kidnapping convictions, where case had to be remanded for resentencing due to plain error in not merging burglary convictions, giving the trial court the opportunity to address the contested issue). Finally, we conclude that ORS 138.222(5)(b) requires resentencing of all of the convictions in the consolidated cases.

         The facts relevant to the issues raised on appeal are few and undisputed. Defendant was charged, in four separate charging instruments, with multiple sexual offenses involving a series of victims, as well as other crimes. Corresponding with the four charging instruments, the cases were assigned separate case numbers. On the state's motion, those cases were later consolidated under ORS 132.560(2), set out below, 285 Or.App. at 535, and the cases were tried together to the court. The court found defendant guilty of many of the charged offenses in each of the cases, including, as pertinent to defendant's assignments of error on appeal, three counts of first-degree sexual abuse, unlawful delivery of methamphetamine to a minor, and unlawful delivery of methamphetamine in Case No. C130849CR.[2]After a sentencing hearing, the court sentenced defendant in each of the consolidated cases, together with three other cases that had not been consolidated for trial, and entered a separate judgment in each case corresponding to the counts alleged in the respective charging instruments. Defendant separately appealed the judgments in the four consolidated cases, and the appeals were also consolidated.

         On appeal, defendant contends in his second assignment of error that, in Case No. C130849CR, "[b]ecause Count 5, charging delivery of methamphetamine to a minor, and Count 6, charging delivery of methamphetamine, were based on the same act against the same victim, and Count 6 is a lesser[-]included offense of Count 5, the trial court should have entered a single conviction for the greater offense." He acknowledges that the error is unpreserved but contends that it is within our discretion to correct it as plain error. See ORAP 5.45(1); State v. Brown, 310 Or 347, 355, 800 P.2d 259 (1990). As noted, the state concedes that the court plainly erred by entering separate convictions on those counts. We agree.

         As defined by ORS 475.890, [3] unlawful delivery of methamphetamine to a minor is simply an enhanced version of unlawful delivery of methamphetamine; therefore, the court should have entered a single conviction for the former offense. Cf. State v. Rodriguez-Gomez. 242 Or.App. 567, 568, 256 P.3d 169 (2011) (trial court plainly erred in failing to merge verdicts for delivery of methamphetamine and delivery of methamphetamine within 1, 000 feet of a school). Accordingly, the state's concession is well-founded, and we accept it. Moreover, as in Rodriguez-Gomez, the relevant considerations weigh in favor of exercising our discretion to correct the error. Among other considerations, the presence of an additional conviction on defendant's criminal record "misstates the nature and extent of defendant's conduct"; furthermore, the state "has no interest in convicting a defendant twice for the same crime." State v. Valladares-Juarez. 219 Or.App. 561, 564, 184 P.3d 1131 (2008).

         Consequently, we reverse defendant's convictions on Counts 5 and 6 in Case No. C130849CR and remand for entry of a judgment of conviction for one count of unlawful delivery of methamphetamine to a minor. That disposition also requires a remand for resentencing under ORS l38.222(5)(b), which provides that, "[i]f the appellate court, in a case involving multiple counts of which at least one is a felony, reverses the judgment of conviction on any count and affirms other counts, the appellate court shall remand the case to the trial court for resentencing on the affirmed count or counts." See State v. Skaggs.275 Or.App. 557, 560-61, 364 P.3d 355 (2015), rev den, 359 Or 667 ...


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.