Opinion
86-0383; CA A42859
Argued and submitted March 31, 1988
Remanded with instructions to vacate conviction for conspiracy to deliver controlled substance; otherwise affirmed July 6, 1988 Reconsideration denied September 2, 1988 Petition for review denied September 29, 1988 ( 306 Or. 661)
Appeal from Circuit Court, Washington County.
Donald C. Ashmanskas, Judge.
Glenn N. Solomon, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Leslie Jo Westphal, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Warden, Presiding Judge, and Van Hoomissen and Graber, Judges.
PER CURIAM
Remanded with instructions to vacate conviction for conspiracy to deliver controlled substance; otherwise affirmed.
Defendant was convicted of conspiracy to deliver a controlled substance (heroin) and two counts of delivery an two counts of possession of a controlled substance (heroin and cocaine). He appeals, assigning four errors. We vacate the conspiracy conviction and otherwise affirm.
In his fourth assignment, defendant contends, and the state concedes, that the trial court erred in not merging his conviction for conspiracy to deliver heroin with his conviction for delivery of heroin. We agree. ORS 161.485 (3); State v. McNamer, 80 Or. App. 418, 421, 722 P.2d 51 (1986). We therefore vacate the conspiracy conviction.
We have considered and reject without comment defendant's first, second and third assignments of error.
Defendant also contends in his fourth assignment that his convictions for possession of the two controlled substances should have been merged and that his convictions for delivery of the two likewise should have been merged. Because defendant did not raise those issues at sentencing, we do not consider them for the first time on appeal. See State v. Barnes, 67 Or. App. 182, 186-87, 677 P.2d 1103 (1984).
Remanded with instructions to vacate conviction for conspiracy to deliver a controlled substance; otherwise affirmed.