State v. Garratt

885 P.2d 757, 131 Or. App. 755, 1994 Ore. App. LEXIS 1809

Opinion

PER CURIAM

Defendant appeals from his convictions for solicitation to commit perjury and conspiracy to commit perjury. ORS 162.065; ORS 161.435; ORS 161.450. The trial court imposed a sentence of 12 months of incarceration, with 36 months of post-prison supervision, on the conspiracy count and five years of probation on the solicitation count. Defendant argues on appeal that because ORS 161.485C2)¹ precludes conviction of more than one inchoate crime for conduct aimed at the culmination of the same crime, the two offenses merged as a matter of law.

Defendant did not object to the trial court’s failure to merge the two counts; however, on appeal, he argues that the error is apparent on the face of the record and requests that we exercise our discretion and review the error. ORAP 5.45(2). As the state concedes, defendant is correct that the error is one of law and is apparent on the face of the record. Particularly in view of the state’s concession, we are persuaded to exercise our discretion to review the unpreserved error. State v. Jones, 129 Or App 413, 879 P2d 881 (1994). We remand for entry of a corrected judgment imposing only one conviction and for resentencing.

Remanded for entry of a corrected judgment and resentencing.

Footnotes

1

ORS 161.485(2) provides:

“A person shall not be convicted of more than one offense defined by ORS 161.405 [attempt], 161.435 [solicitation] and 161.450 [conspiracy] for conduct designed to commit or to culminate in commission of the same crime.”