Submitted January 23, 2018
Deschutes County Circuit Court 15CR41595 Wells B. Ashby,
G. Lannet, Chief Defender, Criminal Appellate Section, and
Laura A. Frikert, Deputy Public Defender, Office of Public
Defense Services, filed the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Timothy A. Sylwester, Assistant Attorney
General, filed the brief for respondent.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
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.
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
and remanded for merger consistent with this opinion;
remanded for resentencing; otherwise affirmed.
Or. 842] LAGESEN, P. J.
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. We reverse and remand for merger of the
affected convictions, and remand the entire case for
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 ...