State v. Valdovinos-Moreno ( 2022 )

534
Submitted April 11; conviction on Count 9 reversed and remanded for entry
of a judgment of conviction for attempted first-degree rape, remanded for
resentencing, otherwise affirmed May 11, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
MARGARITO VALDOVINOS-MORENO,
Defendant-Appellant.
Marion County Circuit Court
19CR01126; A174672
510 P3d 290
Courtland Geyer, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kali Montague, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Nicholas C. Greenfield, Assistant
Attorney General, filed the brief for respondent.
Before Powers, Presiding Judge, and Lagesen, Chief Judge,
and Hellman, Judge.
PER CURIAM
Conviction on Count 9 reversed and remanded for entry
of a judgment of conviction for attempted first-degree rape;
remanded for resentencing; otherwise affirmed.
Cite as 319 Or App 534 (2022) 535
PER CURIAM
Defendant appeals from a judgment convicting
him of three counts of first-degree rape, ORS 163.375;
three counts of first-degree sexual abuse, ORS 163.427; and
fourth-degree assault, ORS 163.160(3). In two assignments
of error, defendant challenges the trial court’s denial of his
motion for judgment of acquittal on the fourth-degree assault
charge on Count 8 and the trial court’s entry of a first-
degree rape conviction on Count 9. First, we reject defen-
dant’s challenge to the trial court’s ruling on the motion for
judgment of acquittal as unpreserved. The argument defen-
dant advances on appeal is not the same argument that he
raised before the trial court. Second, as to Count 9, the state
concedes that the trial court erred when it entered a judg-
ment that convicted him of first-degree rape when it had
previously granted the state’s motion to reduce that charge
to attempted first-degree rape. We agree that the trial court
erred, accept the state’s concession, reverse the conviction
on Count 9, and remand for the trial court to correct the
judgment of conviction on that count and for resentencing.1
Conviction on Count 9 reversed and remanded for
entry of a judgment of conviction for attempted first-degree
rape; remanded for resentencing; otherwise affirmed.
1
The parties do not appear to agree on whether the sentence imposed on
Count 9 was consistent or inconsistent with the trial court’s earlier ruling reduc-
ing Count 9 to attempted first-degree rape. Because we reverse Count 9 and
remand the case to the trial court to correct the judgment, which requires resen-
tencing, the parties will have the opportunity to raise any issues with respect to
the appropriate sentence. ORS 138.257(4).