State v. Johansen ( 2011 )

256 P.3d 159 (2011) 242 Or. App. 515

STATE of Oregon, Plaintiff-Respondent,
v.
Matthew Jacob JOHANSEN, Defendant-Appellant.

C082582CR; A144518.

Court of Appeals of Oregon.

Submitted March 23, 2011. Decided April 27, 2011.

Andrew S. Chilton and Chilton & Galli, LLC, filed the brief for appellant.

John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Denis M. Vannier, Assistant Attorney General, filed the brief for respondent.

Before BREWER, Chief Judge, and EDMONDS, Senior Judge.

PER CURIAM.

Defendant appeals from his convictions for a variety of offenses, raising two assignments of error. In his first assignment, defendant argues that the trial court erred in declining to merge his convictions on two counts of first-degree burglary, ORS 164.225. In his second assignment of error, defendant argues that the trial court erred in failing to merge his convictions for second-degree assault, ORS 163.175, and unlawful use of a weapon, ORS 166.220. Defendant's second assignment of error is controlled by our decision in State v. Cufaude, 239 Or.App. 188, 244 P.3d 382 (2010), rev. den., 350 Or. 130, 250 P.3d 922 (2011), and we reject it without further discussion.

Defendant acknowledges that his first assignment of error is unpreserved, but he urges us to review it under plain error principles. He asserts that the trial court's failure to merge his first-degree burglary convictions was plainly erroneous under State v. White, 341 Or. 624, 147 P.3d 313 (2006). The state agrees that the trial court erred, because "the record shows that defendant's two burglary convictions merely reflected different theories of guilt for a single offense." Moreover, the state further agrees that the error is plain and that this court should exercise its discretion to correct the error.

In State v. Valladares-Juarez, 219 Or.App. 561, 184 P.3d 1131 (2008), we determined that the relevant considerations under Ailes v. Portland Meadows, 312 Or. 376, 382 n. 6, 823 P.2d 956 (1991), State v. Fults, 343 Or. 515, 523, 173 P.3d 822 (2007), and State v. Ramirez, 343 Or. 505, 513, 173 P.3d 817 (2007), adh'd to as modified on recons., 344 Or. 195, 179 P.3d 673 (2008), weighed in favor of our exercise of discretion to remedy the trial court's failure to merge separate first-degree kidnapping charges, where the separate charges were merely "alternative theories of proving a single offense." Valladares-Juarez, 219 Or.App. at 563-64, 184 P.3d 1131. As we explained:

"First, the error in this case is grave; the presence of an additional kidnapping conviction on defendant's criminal record misstates the nature and extent of defendant's conduct and could have significant implications with regard to any future calculation of his criminal history. Second, although the state may have an interest in avoiding unnecessary resentencing proceedings * * * it has no interest in convicting a defendant twice for the same crime. Thus, on balance, the competing interests of the parties in this case weigh in favor of exercising our discretion to correct the error. Moreover, we cannot identify any strategic reason that defendant may have had for not objecting to the entry of separate kidnapping convictions; nor can we identify any reason why the ends of justice would not be served by ensuring that defendant's criminal record accurately reflects the crimes for which he has been convicted. Indeed, the state has not suggested any reasons why this court should decline to exercise its discretion to correct the error in this case."

Id. at 564-65, 184 P.3d 1131 (emphasis in original; citations omitted). For the same reasons, we conclude that it is appropriate for us to exercise our discretion to correct the trial court's error in failing to merge defendant's convictions in this case.

Reversed and remanded for entry of a judgment reflecting a single conviction for first-degree burglary; otherwise affirmed.