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State v. Lantz

Court of Appeals of Oregon

March 21, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
MITCHELL ALLEN LANTZ, Defendant-Appellant.

          Submitted January 23, 2018

          Deschutes County Circuit Court 15CR41595 Wells B. Ashby, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Defendant appeals in this criminal case, contending that the trial court plainly erred when it entered separate convictions on a number of counts that, defendant argued, should have merged. The state concedes the errors.

         Held:

         The trial court plainly erred when it entered separate convictions on paired counts of first-degree rape that were based on the same instance of conduct alleged under different theories. The trial court also plainly erred when it similarly entered separate convictions on paired first-degree sodomy counts. The trial court also plainly erred by entering separate convictions on first-degree sexual abuse counts without making findings that would permit it to do so. The Court of Appeals exercised its discretion to correct those errors.

         Reversed and remanded for merger consistent with this opinion; remanded for resentencing; otherwise affirmed.

         [290 Or. 842] LAGESEN, P. J.

         Defendant appeals from a judgment imposing separate convictions for 14 counts of first-degree rape, 25 counts of first-degree sodomy, 16 counts of first-degree sexual abuse, six counts of first-degree unlawful sexual penetration, four counts of endangering the welfare of a minor, six counts of luring a minor, one count of third-degree assault, and one count of possession of methamphetamine as a commercial drug offense. Defendant contends in his first 10 assignments of error that the trial court plainly erred by failing to merge a number of the jury's guilty verdicts according to the requirements of ORS 161.067.[1] We reverse and remand for merger of the affected convictions, and remand the entire case for resentencing.[2]

         When two or more counts involve the same conduct or criminal episode, the counts merge unless one of the provisions of ORS 161.067 operates to preclude merger. State v. Nelson, 282 Or.App. 427, 431, 386 P.3d 73 (2016). ORS 161.067(1) prevents merger of two or more counts if the "conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not[.]" ORS 161.067(3) provides, in part:

"When the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the same statutory provision against the same victim, there are as many separately punishable offenses as there are violations, except that each violation, to be separately punishable under this subsection, must be separated from other such violations by a sufficient pause in the ...

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