Summary
accepting state’s concession that trial court plainly erred by "imposing a fine on counts that merged into other convictions"
Summary of this case from State v. TraversOpinion
A160372
03-22-2017
STATE of Oregon, Plaintiff-Respondent, v. Daniel CUENCA-JUAREZ, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General, filed the brief for respondent.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Kyle Krohn, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Flynn, Judge, and DeHoog, Judge.
PER CURIAMDefendant appeals a judgment convicting him of three counts of first-degree burglary (Counts 1, 2, and 4). ORS 164.225. The court merged two counts of second-degree theft (Counts 3 and 5) into defendant's convictions on Counts 2 and 4. On appeal, defendant raises three assignments of error. We write only to address defendant's second assignment in which he contends that the trial court plainly erred in imposing $ 700 in fines, and reject his remaining arguments without discussion. See ORAP 5.45(1) ; Ailes v. Portland Meadows, Inc. , 312 Or. 376, 382, 823 P.2d 956 (1991) (court has discretion to review unpreserved error of law apparent on the record). In particular, defendant points out that the court stated that it would impose a $ 200 minimum fine for each of Counts 1, 2, and 4. It also stated that it would impose a single $ 100 fine for Counts 3 and 5. Defendant asserts the court plainly erred in imposing a fine on Counts 3 and 5 because it had "no authority to impose a sentence on a merged count." The state concedes that the court plainly erred by imposing a fine on counts that merged into other convictions. We agree and accept the state's concession. See State v. Wilcox , 249 Or.App. 248, 249, 274 P.3d 893 (2012) (trial court errs in imposing sentences on counts that merged into other convictions). In addition, we conclude that, for reasons of judicial economy and the ends of justice, it is appropriate to exercise our discretion to correct the error. See State v. Sasser , 275 Or.App. 471, 472, 364 P.3d 352 (2015) (exercising discretion to correct error in imposing a $ 60 amount in judgment that the sentencing court lacked authority to impose).
Remanded for entry of judgment imposing $ 600 fine; otherwise affirmed.