State v. Clay ( 2021 )

268
Submitted November 5; remanded for resentencing, otherwise affirmed
December 8, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
RANDY KENT CLAY,
Defendant-Appellant.
Lane County Circuit Court
16CR56503; A173920
501 P3d 98
Bradley A. Cascagnette, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Shawn Wiley, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rebecca M. Auten, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Remanded for resentencing; otherwise affirmed.
Cite as 316 Or App 268 (2021) 269
PER CURIAM
Defendant was initially convicted on two counts
of first-degree sexual abuse, ORS 163.427, two counts of
using a child in a display of sexually explicit conduct, ORS
163.670, and one count of third-degree sexual abuse, ORS
163.415. In his original appeal, he successfully argued that
the trial court erred in failing to acquit him on the counts
of using a child in a display of sexually explicit conduct, and
this court reversed those two convictions and remanded for
resentencing. State v. Clay, 301 Or App 599, 457 P3d 330
(2019). On resentencing, the trial court imposed consecu-
tive sentences on the two convictions for first-degree sex-
ual abuse and a concurrent sentence on the conviction for
third-degree sexual abuse. Defendant again appeals. He
argues that the trial court plainly erred in failing to merge
the guilty verdicts on the two counts of first-degree sexual
abuse, because they involved conduct during the same crim-
inal episode against the same victim, and the violations
were not separated “by a sufficient pause in the defendant’s
criminal conduct to afford the defendant an opportunity to
renounce the criminal intent.” ORS 161.067(3). The state
concedes the error because the record establishes that there
was no pause between the acts that constituted the first-
degree sexual abuse. On review of the record, we agree. We
exercise discretion to correct the error for the reasons set
forth in State v. Sheikh-Nur, 285 Or App 529, 533, 398 P3d
472, rev den, 361 Or 886 (2017).
Remanded for resentencing; otherwise affirmed.