Opinion
89C-21174, 89C-21173; CA A65821 (Control), A65876 (Consolidated for Opinion Only)
Argued and submitted April 5, 1991 Reconsideration denied August 14, 1991
Petition for review denied September 24, 1991
Appeal from Circuit Court, Marion County.
C. Gregory West, Judge.
Mark J. Geiger, Salem, argued the cause and filed the brief for appellant John Vincent Wigglesworth; Jay Edwards, Salem, argued the cause and filed the brief for appellant Vernell Wigglesworth.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the briefs were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
CA A65821 before Buttler, Presiding Judge, and Rossman and De Muniz, Judges; CA A65876 before Warren, Presiding Judge, and Joseph, Chief Judge, and Riggs, Judge.
PER CURIAM
Conviction and sentence for conspiracy affirmed in each case; conviction and sentence for possession of controlled substance vacated in each case.
Defendants were found guilty of conspiracy to deliver a controlled substance, ORS 161.450, delivery of a controlled substance, ORS 475.992(1), and possession of a controlled substance. ORS 475.992(4). At sentencing, the trial court merged the delivery charge into the conspiracy charge in each case and imposed separate concurrent sentences on the charges of conspiracy and possession.
Although the cases were briefed and argued separately, we have consolidated them for the purpose of decision.
Defendants contend that they cannot be sentenced separately for conspiracy to deliver a controlled substance and for possession of the same controlled substance. The state concedes that, because it cannot be assumed that the verdicts on the two charges were predicated on separate quantities of cocaine, each conviction for possession of a controlled substance, the conviction on which the trial court imposed the less severe sentence, should be vacated. State v. Clark, 98 Or. App. 478, 779 P.2d 215 (1989).
Defendants' other assignments need no discussion.
Conviction and sentence for conspiracy affirmed in each case; conviction and sentence for possession of controlled substance vacated in each case.