State v. Villarreal

338 P.3d 801, 266 Or. App. 699, 2014 Ore. App. LEXIS 1492

• Court: Court of Appeals of Oregon
• Decided: October 29, 2014
• Docket: C120306CR; A153506
• Status: Published

Opinion

PER CURIAM

Defendant appeals a judgment of conviction for one count of delivery of cocaine within 1,000 feet of a school, ORS 475.882; one count of unlawful delivery of cocaine, ORS 475.880; and one count of unlawful possession of cocaine, ORS 475.884. On appeal, defendant contends that the trial court committed plain error when it failed to merge the guilty verdict for unlawful delivery of cocaine with the guilty verdict for unlawful delivery of cocaine within 1,000 feet of a school. See State v. Rodriguez-Gomez, 242 Or App 567, 568, 256 P3d 169 (2011) (“ [T]he verdicts for delivery of methamphetamine and delivery of methamphetamine within 1,000 feet of a school should have merged into a single conviction.”); see also ORAP 5.45(1); Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991) (court has discretion to review unpreserved error of law apparent on the face of the record). The state concedes that the trial court committed plain error. We agree, accept the state’s concession and, for the reasons stated in State v. Camacho-Alvarez, 225 Or App 215, 217, 200 P3d 613 (2009), conclude that it is appropriate to exercise our discretion to correct the error.

Reversed and remanded with instructions to merge the guilty verdicts for unlawful delivery of cocaine and unlawful delivery of cocaine within 1,000 feet of a school into a single conviction for unlawful delivery of cocaine within 1,000 feet of a school, and for resentencing; otherwise affirmed.