State v. Donoghue

Court of Appeals of Oregon

State v. Donoghue

179 P.3d 729, 218 Or. App. 372, 2008 Ore. App. LEXIS 276

CourtCourt of Appeals of Oregon

DecidedMarch 5, 2008

Docket05FE0663ST; A130799

StatusPublished

This text of 179 P.3d 729 (State v. Donoghue) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Donoghue, 179 P.3d 729, 218 Or. App. 372, 2008 Ore. App. LEXIS 276 (Or. Ct. App. 2008).

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Opinion

PER CURIAM

Defendant was convicted of first-degree manslaughter, ORS 163.118 (Count 2); second-degree manslaughter, ORS 163.125 (Count 3); second-degree assault, ORS 163.175 (Count 5); and two counts of fourth-degree assault, ORS 163.160 (Counts 1 and 6). Count 1 of the indictment involved defendant’s actions toward one victim, while the remaining counts concerned defendant’s actions toward a different victim. On appeal, defendant argues that the trial court erred in failing to merge his convictions for second-degree manslaughter (Count 3) and fourth-degree assault (Count 6) with his conviction for first-degree manslaughter (Count 2), all of which concerned the same victim and the same incident. The state concedes that the trial court erred in that regard, and we agree and accept the concession. On remand, the trial court should enter a judgment merging the convictions for Counts 3 and 6 with Count 2.

In a supplemental brief, defendant attempts to raise additional issues, including inadequate assistance of counsel and prosecutorial misconduct. Defendant’s supplemental brief does not set forth separate assignments of error or otherwise comply with the format and preservation requirements of ORAP 5.45. Accordingly, we refuse to address the issues raised in the supplemental brief.

Remanded for merger and resentencing; otherwise affirmed.

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PER CURIAM

Defendant was convicted of first-degree manslaughter, ORS 163.118 (Count 2); second-degree manslaughter, ORS 163.125 (Count 3); second-degree assault, ORS 163.175 (Count 5); and two counts of fourth-degree assault, ORS 163.160 (Counts 1 and 6). Count 1 of the indictment involved defendant’s actions toward one victim, while the remaining counts concerned defendant’s actions toward a different victim. On appeal, defendant argues that the trial court erred in failing to merge his convictions for second-degree manslaughter (Count 3) and fourth-degree assault (Count 6) with his conviction for first-degree manslaughter (Count 2), all of which concerned the same victim and the same incident. The state concedes that the trial court erred in that regard, and we agree and accept the concession. On remand, the trial court should enter a judgment merging the convictions for Counts 3 and 6 with Count 2.

In a supplemental brief, defendant attempts to raise additional issues, including inadequate assistance of counsel and prosecutorial misconduct. Defendant’s supplemental brief does not set forth separate assignments of error or otherwise comply with the format and preservation requirements of ORAP 5.45. Accordingly, we refuse to address the issues raised in the supplemental brief.

Remanded for merger and resentencing; otherwise affirmed.

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Bluebook (online)

179 P.3d 729, 218 Or. App. 372, 2008 Ore. App. LEXIS 276, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-donoghue-orctapp-2008.

Opinion

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