and submitted January 30, 2017
Clackamas County Circuit Court CR1200998; Kathie F. Steele,
Montague, Deputy Public Defender, argued the cause for
appellant. Also on the briefs was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Offce of Public Defense
Timothy A. Sylwester, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
Armstrong, Presiding Judge, and Tookey, Judge, and Shorr,
Summary: Defendant was convicted in 2012 of five offenses,
including unlawful use of a weapon (Count 1) and two counts
of felon in possession of a fire-arm (FIP) (Counts 2 and 6).
In his first appeal, State v. Nunes, 268 Or.App.
299, 341 P.3d 224 (2014), the Court of Appeals reversed
defendant's FIP convictions and remanded with
instructions to enter a single conviction for FIP and for
resen-tencing. Defendant appeals the judgment entered on
remand after resentencing, raising three assignments of
error. In his first assignment of error, defendant contends
that the trial court plainly erred in imposing a 10-year gun
minimum sentence on Count 1 under ORS 161.610(4)(b). In a
supplemental assignment of error, he contends that the trial
court plainly erred in concluding that ORS 161.610(3)
disqualified him for eligibility for earned time on Count 1.
And, in his second assignment of error, defendant contends
that the trial court erred in failing to merge his guilty
verdict on Count 2 (FIP) with his guilty verdict on Count 1
(UUW-firearm) under ORS 161.067(1). Held:
Defendant's first assignment of error did not qualify for
plain-error review because the alleged error was not [295
Or.App. 92] beyond reasonable dispute. The Court of Appeals
declined to address defendant's supplemental assignment
of error because correction of that alleged error would not
afford defendant the relief that he sought. Finally, the
trial court did not err in failing to merge defendant's
guilty verdicts on Counts 1 and 2.
Or.App. 93] ARMSTRONG, P. J.
was convicted in 2012 of one count of unlawful use of a
weapon with a firearm (UUW-firearm) (Count 1), ORS 161.610;
ORS 166.220; two counts of felon in possession of a firearm
(FIP) (Counts 2 and 6), ORS 166.270; one count of menacing
constituting domestic violence (Count 3), ORS 163.190; and
one count of fourth-degree assault constituting domestic
violence (Count 4), ORS 163.160(2). In defendant's first
appeal in this case, we reversed the two FIP convictions and
remanded with instructions to enter a single conviction for
FIP and for resentencing. Otherwise, we affirmed. State
v. Nunes, 268 Or.App. 299, 341 P.3d 224 (2014)
(Nunes I). Defendant now appeals the judgment
entered on remand, once again seeking resentencing.
first assignment of error, defendant contends that the trial
court erred in imposing a 10-year gun minimum sentence under
ORS 161.610(4)(b) on his conviction for Count 1 (UUW-firearm)
because he had not previously been sentenced under ORS
161.610. Defendant did not preserve that claim of
error but urges us to exercise our discretion to consider it
under ORAP 5.45(1) as plain error. Also related to his
sentence on Count 1, defendant contends in a supplemental
assignment of error that the court plainly erred in
concluding that ORS 161.610(3) disqualified him for
eligibility for earned time. Finally, in his second assignment
of error, defendant challenges the trial court's failure
to merge his guilty verdict on Count 2 (FIP) with his guilty
verdict on Count 1 (UUW-firearm). For the reasons set out
below, we decline to address defendant's first and
supplemental assignments of error, and we reject his second
assignment. Accordingly, we affirm.
Or.App. 94] The facts material to the issues presented on
appeal-which are primarily procedural-are not contested by
the parties. In August 2012, defendant was convicted and
sentenced for the five offenses described above. Nunes
I, 268 Or.App. at 301 n 1. As relevant here, on Count 1
(UUW-firearm), the court imposed a 10-year gun minimum
sentence pursuant to ORS 161.610(4)(b) and ordered "No
good time/earned time pursuant to ORS 161.610(3)"; on
Counts 2 and 6 (FIP), the court imposed separate convictions
and sentences. Defendant appealed, contending that the trial
court had erred in holding that the "anti-merger
statute," ORS 161.067, prevented the two FIP counts from
merging. 268 Or.App. at 304. We agreed and reversed and
remanded those convictions with instructions to enter a
single conviction for FIP and for resentencing. Id.
resentencing hearing, the state asked the trial court to
merge Count 6 with Count 2, as instructed by this court, and
otherwise to "follow through with the same
sentence," including again imposing a 10-year gun
minimum under ORS 161.610(4)(b) on Count 1 (UUW-firearm),
based on the fact that it was defendant's second
conviction under that statute. As it did at defendant's
original sentencing, the state relied on defendant's 1995
conviction for UUW as the predicate offense. The state also
asserted that defendant was not eligible for earned time
under ORS 161.610(3). Defendant, for his part, argued only
that Count 1 (UUW-firearm) should merge into Count 2 (FIP)
under State v. Flores, 259 Or.App. 141, 313 P.3d 378
(2013), rev den, 354 Or. 735 (2014), which the state
disputed. Defendant did not address the state's request
that the court again impose a 10-year gun minimum sentence on
Count 1, nor did he contradict the state's assertion
that, under ORS 161.610(3), defendant was not eligible for
Or.App. 95] The trial court agreed with the state in all
respects. That is, it declined to merge Counts 1 and 2,
merged Count 6 into Count 2 as instructed by Nunes
I, and otherwise imposed the same sentences as it had
originally, including the 10-year gun minimum sentence on
Count 1. As to that count, the judgment, again, also stated:
"No good time/earned time pursuant to ORS 161.610(3). *
* *. "The Defendant may not be considered by the
executing or releasing authority for any form of Reduction in
Sentence, Conditional or Supervised Release Program,
Temporary Leave From Custody, [or] Work Release."
appeals that judgment.
begin with defendant's first assignment of error, in
which he challenges the trial court's reimposition of a
10-year gun minimum sentence on Count 1 (UUW-firearm) under
ORS 161.610(4)(b). He contends that the 1995 UUW conviction
on which the court relied for a predicate offense was not a
conviction and sentence under ORS 161.610, and,
therefore, the court erred in imposing the 10-year sentence
applicable to a second gun minimum offense under ORS
161.610(4)(b), rather than a first gun minimum sentence of
five years under ORS 161.610(4)(a). Defendant acknowledges
that he did not preserve that issue at the resentencing
hearing but requests that we review it as plain
error. We reject that request.
courts generally will not consider a claim of error that has
not been preserved in the trial court; however, the court
"may, in its discretion, consider a plain error."
ORAP 5.45(1). Three criteria must be satisfied for a claim of
error to qualify as plain error: (1) "it must be an
error of law"; (2) the error must be "obvious, and
not reasonably in dispute"; and (3) the error must be
"apparent on the record without requiring the court to
choose among competing inferences." State v.
Vanornum, 354 Or. 614, 629, 317 P.3d 889 (2013). If the
asserted error satisfies those requirements, we then must
determine whether to exercise our [295 Or.App. 96] discretion
to review the error, a decision that is to be made with
"'utmost caution'" because plain-error
review undermines the principles underlying the preservation
requirement. Id. at 630-31 (quoting Ailes v.
Portland Meadows, Inc., 312 Or. 376, 382, 823 P.2d 956
(1991)). In this case, the parties focus their arguments on
the second requirement for plain-error review-whether the
alleged error is obvious or beyond reasonable dispute.
Because, as explained below, we conclude that it is not, we
decline to address the error.
minimum statute, ORS 161.610, provides, as relevant:
"(2) The use or threatened use of a firearm, whether
operable or inoperable, by a defendant during the commission
of a felony may be pleaded in the accusatory instrument and
proved at trial as an element in aggravation of the crime as
provided in this section. When a crime is so pleaded, the
aggravated nature of the crime may be indicated by adding the
words 'with a firearm' to the title of the offense.
The unaggravated crime shall be considered a lesser included
"(3) Notwithstanding the provisions of ORS 161.605 Or.
137.010(3) and except as otherwise provided in subsection (6)
of this section, if a defendant is convicted of a felony
having as an element the defendant's use or threatened
use of a firearm during the commission of the crime, the
court shall impose at least the minimum term of imprisonment
as provided in subsection (4) of this section. Except as
provided in ORS 144.122 and 144.126 and subsection (5) of
this section, in no case shall any person punishable under
this section become eligible for work release, parole,
temporary leave or terminal leave until the minimum term of
imprisonment is served, less a period of time equivalent to
any reduction of imprisonment granted for good time served or
time credits earned under ORS 421.121, nor shall the
execution of the sentence imposed upon such person be
suspended by the court.
"(4) The minimum terms of imprisonment for felonies
having as an element the defendant's use or threatened
use of a firearm in the commission of the crime shall be
"(a) Except as provided in subsection (5) of this
section, upon the first conviction for such felony, five
years, except [295 Or.App. 97] that if the firearm is a
machine gun, short-barreled rifle, short-barreled shotgun or
is equipped with a firearms silencer, the term of
imprisonment shall be 10 years.
"(b) Upon conviction for such felony committed after
punishment pursuant to paragraph (a) of this subsection or
subsection (5) of this section, 10 years, except that if
the firearm is a machine gun, short-barreled rifle,
short-barreled shotgun or is equipped with a firearms
silencer, the term of imprisonment shall be 20 years.
"(5) If it is the first time that the defendant is
subject to punishment under this section, rather than impose
the sentence otherwise required by subsection (4) (a) ...