State v. Dudley

296 P.3d 1287, 255 Or. App. 501, 2013 WL 765108, 2013 Ore. App. LEXIS 253

• Court: Court of Appeals of Oregon
• Decided: February 27, 2013
• Docket: 10CR0512; A147475
• Status: Published

Opinion

PER CURIAM

Defendant was convicted, after a jury trial, of two counts of unauthorized use of a vehicle (UUV) (Counts 2 and 3), two counts of possession of a stolen motor vehicle (PSV) (Counts 6 and 7), and one count of trafficking in vehicles with destroyed or altered identification numbers (Count 9). In his first two assignments of error, defendant contends, relying on State v. Noe, 242 Or App 530, 256 P3d 14 (2011), that the trial court plainly erred in failing to merge (1) the UUV and PSV verdicts in Counts 2 and 6, which involved the same vehicle, into a single conviction and (2) the UUV and PSV verdicts in Counts 3 and 7, which also involved the same vehicle (but a different one from that implicated in Counts 2 and 6), into a single conviction. The state acknowledges that Noe governs, but contends that it was wrongly decided. As we recently did in State v. Joynt, 254 Or App 415, 294 P3d 534 (2012), we reject that proposition and conclude that, as in Noe, all of the elements of PSV are subsumed into the elements of UUV in this case. Accordingly, each pair of defendant’s convictions for PSV and UUV should have merged, and we reverse and remand for the trial court to make that correction and for resentencing. ORS 138.222(5).

Given that disposition, we need not address defendant’s third assignment of error, in which he raises an unpreserved contention that the trial court erred in imposing restitution.

Reversed and remanded with instructions to merge defendant’s convictions on Counts 2 and 6 into a single conviction for unauthorized use of a vehicle, to merge defendant’s convictions on Counts 3 and 7 into a single conviction for unauthorized use of a vehicle, and for resentencing; otherwise affirmed.