State v. Wytcherley

299 P.3d 606, 256 Or. App. 128, 2013 WL 1352355, 2013 Ore. App. LEXIS 368

• Court: Court of Appeals of Oregon
• Decided: April 3, 2013
• Docket: 10CR0659; A149051
• Status: Published

Opinion

PER CURIAM

A jury found defendant guilty of one count of second-degree assault and one count of unlawful use of a weapon.¹ Both counts were based on a single incident in which defendant shot his brother in the leg. The trial court entered two separate convictions, and defendant appeals.

In a single assignment of error, defendant argues that the trial court plainly erred in entering two separate convictions rather than merging the guilty verdicts into a single conviction for second-degree assault. The state, for its part, concedes that the trial court plainly erred in that regard. See State v. Ryder, 230 Or App 432, 216 P3d 895 (2009). We accept the state’s concession and, for the reasons expressed in Ryder, 230 Or App at 435, exercise our discretion to correct the error.

Reversed and remanded with instructions to merge conviction for unlawful use of a weapon (Count 3) into conviction for assault in the second degree (Count 2) and for resentencing; otherwise affirmed.

1 Defendant was acquitted on a charge of attempted murder with a firearm.