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State v. Perez-Cardenas

Court of Appeals of Oregon

April 3, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
JOSE CARLOS PEREZ-CARDENAS, Defendant-Appellant.

          Submitted July 30, 2018

          Benton County Circuit Court 14CR32483; David B. Connell, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Meredith Allen, Deputy Public Defender, Offce of Public Defense Services, fled the briefs for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, fled the brief for respondent.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant was convicted of one count of first-degree rape, ORS 163.375, and two counts of first-degree sexual abuse, ORS 163.427. He appeals the judgment of conviction. In one assignment of error, defendant argues that the court plainly erred in failing to merge the guilty verdicts on the two sexual-abuse charges into a single conviction, because the state did not present evidence of a sufficient pause between the charged acts for separate convictions. The state concedes that error. In another assignment of error, defendant challenges part of the restitution order included in his sentence. Held: The trial court plainly erred in not merging the two guilty verdicts for sexual abuse into a single conviction, and the Court of Appeals exercised its discretion to correct the error. Because the case is being remanded for resentencing, the Court of Appeals declined to address the alleged error in the restitution order.

         [296 Or.App. 882] Convictions on Counts 3 and 4 reversed and remanded for entry of a judgment of conviction for one count of first-degree sexual abuse; remanded for resentencing; otherwise affirmed.

         [296 Or.App. 883]AOYAGI, J.

         Defendant was convicted of one count of first-degree rape, ORS 163.375 (Count 1); and two counts of first-degree sexual abuse, ORS 163.427 (Counts 3 and 4). He was sentenced to 300 months' imprisonment on Count 1, 75 months' imprisonment on Count 3, and 75 months' imprisonment on Count 4, all to run concurrently. Defendant also was ordered to pay restitution. Defendant appeals, raising five assignments of error.

         We reject defendant's first, second, and third assignments of error without written discussion.

         In his fourth assignment of error, defendant asserts that the trial court plainly erred by entering separate convictions on Counts 3 and 4, and the state concedes the error. Count 3 alleged that defendant touched the victim's vagina with his fingers, while Count 4 alleged that defendant caused the victim to touch his penis. Defendant argues that, under ORS 161.067(3), the court should have merged the guilty verdicts on those two counts into a single conviction, because the two sexual contacts occurred during the same criminal episode and without any evidence of a significant pause.[1] See ORS 161.067(3) (for a defendant's "repeated violations of the same statutory provision against the same victim" to be separately punishable, each violation must be separated by a sufficient pause to afford the defendant an opportunity to renounce his criminal intention). Defendant did not preserve the alleged error, but he asserts that it meets the requirements for plain error review and asks us to exercise our discretion to review it. See ORAP 5.45(1) (unpreserved errors will not be considered on appeal, except that "the appellate court may, in its discretion, consider a plain error"). The state concedes that the trial court committed plain error and does not dispute that it would be appropriate to exercise our discretion to correct it.

         We may review an unpreserved error if the error is one of law, is obvious and not reasonably in dispute, and [296 Or.App. 884] does not require us to go outside the record or choose between competing inferences to correct it. Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991). Those requirements are met here. Whether multiple verdicts merge into a single conviction is a question of law. State v. Huffman, 234 Or.App. 177, 183, 227 P.3d 1206 (2010). On this record, the correct application of ORS 161.067(3) is obvious and not reasonably in dispute. See State v. Dugan, 282 Or.App. 768, 769, 387 P.3d 439 (2016) (concluding that two guilty verdicts for sexual abuse, based on touching two of the victim's body parts in a single incident, should have merged into a single conviction); State v. Nelson, 282 Or.App. 427, 431, 447, 386 P.3d 73 (2016) (concluding that guilty verdicts on three counts of sexual abuse should have merged into a single conviction, where defendant's conduct-which involved making sexual contact with three different body parts of the victim-occurred in one location, without pause in the defendant's aggression or any significant interruption). Lastly, nothing requires us to go outside the record or to choose between competing inferences.

         The error therefore is plain, and, in light of the gravity of the error in imposing an additional conviction, and for the same reasons as described in State v. Steltz, 259 Or.App. 212, 220-21, 313 P.3d 312 (2013), we exercise our discretion to correct the error. In doing so, we note that the state concedes not only that the existing evidence was insufficient to support a finding of a sufficient pause for separate convictions but also that there is no "basis to conclude ...


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