and submitted December 22, 2015
County Circuit Court C131060CR; A156462 Suzanne Upton, Judge.
F. Byl, Deputy Public Defender, argued the cause for
appellant. With him on the brief was Peter Gartlan, Chief
Defender, Offce of Public Defense Services.
G. Howe, Assistant Attorney General, argued the cause for
respondent. With her on the brief were Ellen F. Rosenblum,
Attorney General, and Paul L. Smith, Deputy Solicitor
Armstrong, Presiding Judge, and Hadlock, Chief Judge, and
appeals a judgment of conviction for, among other things, one
count of aggravated identity theft and 27 counts of identity
theft. Defendant contends that the trial court erred when it
refused to merge the 27 counts of identity theft into the
count of aggravated identity theft as lesser included
offenses. Held: Because there are 27 identity-theft victims,
under the anti-merger statute, defendant could be convicted
of 27 separate identity-theft offenses. However, because the
trial court entered convictions for 28 identity-theft
offenses, the case is reversed and remanded for the trial
court to merge one of the counts of identity theft into the
count of aggravated identity theft.
on Counts 1 and 3 reversed and remanded for entry of judgment
of conviction for one count of aggravated identity theft;
remanded for resentencing; otherwise affirmed.
ARMSTRONG, P. J.
appeals a judgment of conviction for one count of aggravated
identity theft (Count 1), 27 counts of identity theft (Counts
3 through 29), one count of second-degree burglary (Count 2),
and one count of third-degree theft (Count 30). Defendant
pleaded guilty to all those counts but reserved his argument
that his guilty determinations on all 27 counts of identity
theft should have merged into his guilty determination on the
one count of aggravated identity theft, such that, for those
28 counts, he would be convicted of only one count of
aggravated identity theft. On appeal, the state disagrees
with defendant's merger argument but concedes that one of
the counts of identity theft should have been merged into the
count of aggravated identity theft. As explained below, we
reject defendant's argument and accept the state's
concession that the trial court should have merged one of the
counts of identity theft, such that the judgment should
reflect convictions for one count of aggravated identity
theft and 26 counts of identity theft. Accordingly, we
reverse and remand for the trial court to make that
correction and remand for resentencing.
facts are few and undisputed. Defendant was pulled over by a
police officer and, when asked by the officer, consented to a
search of his car. During the search, the officer found 27
closed files taken from an apartment complex. The files
contained the personal identification of at least one person
each, including tax returns, employment paperwork,
driver's licenses, and social security numbers. Each file
contained the personal identification for at least one person
whose identification was not in the other 26 files. Defendant
was charged with one count of aggravated identity theft, 27
counts of identity theft, one count of second-degree
burglary, and one count of third-degree theft. Defendant
entered a guilty plea for each of those counts.
sentencing, defendant argued that all 27 counts of identity
theft had to merge into the count of aggravated identity
theft because they were lesser-included offenses. The trial
court concluded, however, that the counts did not merge
because there were separate victims, which precluded [287
Or.App. 131] merger. Defendant asserts on appeal that the
trial court erred in coming to that conclusion.
of guilty determinations is governed by the anti-merger
statute, ORS 161.067, and the case law construing it. That
statute provides, in part:
"(1) When the same conduct or criminal episode violates
two or more statutory provisions and each provision requires
proof of an element that the others do not, there are as many
separately punishable offenses ...