Summary
concluding that the trial court plainly erred in failing to merge convictions for delivery of cocaine within 1,000 feet of a school and delivery of cocaine
Summary of this case from State v. MickleyOpinion
C120306CR A153506.
10-29-2014
STATE of Oregon, Plaintiff–Respondent, v. Omar Joel VILLARREAL, Defendant–Appellant.
Peter Gartlan, Chief Defender, and Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.
Peter Gartlan, Chief Defender, and Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.
Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.
Opinion
PER CURIAM.Defendant appeals a judgment of conviction for one count of delivery of cocaine within 1,000 feet of a school, ORS 475.882 ; one count of unlawful delivery of cocaine, ORS 475.880 ; and one count of unlawful possession of cocaine, ORS 475.884. On appeal, defendant contends that the trial court committed plain error when it failed to merge the guilty verdict for unlawful delivery of cocaine with the guilty verdict for unlawful delivery of cocaine within 1,000 feet of a school. See State v. Rodriguez–Gomez, 242 Or.App. 567, 568, 256 P.3d 169 (2011) (“[T]he verdicts for delivery of methamphetamine and delivery of methamphetamine within 1,000 feet of a school should have merged into a single conviction.”); see also ORAP 5.45(1) ; Ailes v. Portland Meadows, Inc., 312 Or. 376, 381–82, 823 P.2d 956 (1991) (court has discretion to review unpreserved error of law apparent on the face of the record). The state concedes that the trial court committed plain error. We agree, accept the state's concession and, for the reasons stated in State v. Camacho–Alvarez, 225 Or.App. 215, 217, 200 P.3d 613 (2009), conclude that it is appropriate to exercise our discretion to correct the error.
Reversed and remanded with instructions to merge the guilty verdicts for unlawful delivery of cocaine and unlawful delivery of cocaine within 1,000 feet of a school into a single conviction for unlawful delivery of cocaine within 1,000 feet of a school, and for resentencing; otherwise affirmed.