State v. Sheikh-Nur

398 P.3d 472, 285 Or. App. 529, 2017 WL 2152913, 2017 Ore. App. LEXIS 627
CourtCourt of Appeals of Oregon
DecidedMay 17, 2017
DocketC130331CR, C130849CR, C131055CR, D125301M; A159054 (Control), A159055, A159056, A159057
StatusPublished
Cited by17 cases

This text of 398 P.3d 472 (State v. Sheikh-Nur) 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. Sheikh-Nur, 398 P.3d 472, 285 Or. App. 529, 2017 WL 2152913, 2017 Ore. App. LEXIS 627 (Or. Ct. App. 2017).

Opinion

ARMSTRONG, P. J.

Defendant appeals judgments in four consolidated cases—Washington County Case Nos. C130331CR, C130849CR, C131055CR, and D125301M—in which he was convicted of multiple sexual offenses committed against a series of victims, and of other crimes. He raises two assignments of error on appeal, both of which pertain to Case No. C130849CR.1 In his second assignment of error, he contends that the trial court plainly erred in that case in failing to merge guilty verdicts for unlawful delivery of methamphetamine to a minor (Count 5) and unlawful delivery of methamphetamine (Count 6). The state concedes the error, and we agree. We also conclude that it is appropriate for us to exercise our discretion to correct the error. Accordingly, we reverse defendant’s convictions on Counts 5 and 6 in Case No. C130849CR and remand for entry of a judgment of conviction for one count of unlawful delivery of methamphetamine to a minor. As we explain below, because that disposition also requires us to remand the case for resentencing under ORS 138.222(5)(b), we need not address defendant’s first assignment of error, in which he contends that the trial court also plainly erred in failing to merge guilty verdicts for three counts of first-degree sexual abuse into a single conviction for that offense, a proposition that the state disputes. Instead, the trial court will have the opportunity to address that unpreserved issue in the first instance on remand. See State v. Sauceda, 236 Or App 358, 362, 239 P3d 996 (2010) (declining to address unpreserved argument that the trial court should have merged kidnapping convictions, where case had to be remanded for resentencing due to plain error in not merging burglary convictions, giving the trial court the opportunity to address the contested issue). Finally, we conclude that ORS 138.222(5)(b) requires resentencing of all of the convictions in the consolidated cases.

The facts relevant to the issues raised on appeal are few and undisputed. Defendant was charged, in four [532]*532separate charging instruments, with multiple sexual offenses involving a series of victims, as well as other crimes. Corresponding with the four charging instruments, the cases were assigned separate case numbers. On the state’s motion, those cases were later consolidated under ORS 132.560(2), set out below, 285 Or App at 535, and the cases were tried together to the court. The court found defendant guilty of many of the charged offenses in each of the cases, including, as pertinent to defendant’s assignments of error on appeal, three counts of first-degree sexual abuse, unlawful delivery of methamphetamine to a minor, and unlawful delivery of methamphetamine in Case No. C130849CR.2 After a sentencing hearing, the court sentenced defendant in each of the consolidated cases, together with three other cases that had not been consolidated for trial, and entered a separate judgment in each case corresponding to the counts alleged in the respective charging instruments. Defendant separately appealed the judgments in the four consolidated cases, and the appeals were also consolidated.

On appeal, defendant contends in his second assignment of error that, in Case No. C130849CR, “[b]ecause Count 5, charging delivery of methamphetamine to a minor, and Count 6, charging delivery of methamphetamine, were based on the same act against the same victim, and Count 6 is a lesser[-]included offense of Count 5, the trial court should have entered a single conviction for the greater offense.” He acknowledges that the error is unpreserved but contends that it is within our discretion to correct it as plain error. See ORAP 5.45(1); State v. Brown, 310 Or 347, 355, 800 P2d 259 (1990). As noted, the state concedes that the court plainly erred by entering separate convictions on those counts. We agree.

[533]*533As defined by ORS 475.890,3 unlawful delivery of methamphetamine to a minor is simply an enhanced version of unlawful delivery of methamphetamine; therefore, the court should have entered a single conviction for the former offense. Cf. State v. Rodriguez-Gomez, 242 Or App 567, 568, 256 P3d 169 (2011) (trial court plainly erred in failing to merge verdicts for delivery of methamphetamine and delivery of methamphetamine within 1,000 feet of a school). Accordingly, the state’s concession is well-founded, and we accept it. Moreover, as in Rodriguez-Gomez, the relevant considerations weigh in favor of exercising our discretion to correct the error. Among other considerations, the presence of an additional conviction on defendant’s criminal record “misstates the nature and extent of defendant’s conduct”; furthermore, the state “has no interest in convicting a defendant twice for the same crime.” State v. Valladares-Juarez, 219 Or App 561, 564, 184 P3d 1131 (2008).

Consequently, we reverse defendant’s convictions on Counts 5 and 6 in Case No. C130849CR and remand for entry of a judgment of conviction for one count of unlawful delivery of methamphetamine to a minor. That disposition also requires a remand for resentencing under ORS 138.222(5)(b), which provides that, “[i]f the appellate court, in a case involving multiple counts of which at least one is a felony, reverses the judgment of conviction on any count and affirms other counts, the appellate court shall remand the case to the trial court for resentencing on the affirmed count or counts.” See State v. Skaggs, 275 Or App 557, 560-61, 364 P3d 355 (2015), rev den, 359 Or 667 (2016) (holding that error in failing to merge guilty verdicts, because it involves the reversal of a conviction, is one that requires resentencing under ORS 138.222(5)(b)).4

[534]*534The remaining question involves the extent of the remand. That is, is resentencing on remand under ORS 138.222(5)(b) limited to a resentencing of the convictions reflected in the judgment in Case No. C130849CR? Or does the remand encompass all of the convictions in the four consolidated cases? Defendant contends that, because the four charging instruments were consolidated under ORS 132.560(2), and the court “sentenced the counts of conviction as a package,” the consolidated cases become “the case” for resentencing purposes under ORS 138.222(5)(b). The state responds that each charging instrument, or at least each judgment, should be treated as a separate case for purposes of the statute, and resentencing is therefore limited to the counts disposed of in the judgment in which we reverse defendant’s conviction—that is, Case No. C130849CR.

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Cite This Page — Counsel Stack

Bluebook (online)
398 P.3d 472, 285 Or. App. 529, 2017 WL 2152913, 2017 Ore. App. LEXIS 627, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-sheikh-nur-orctapp-2017.