State v. Nunn ( 2022 )

267
Submitted May 11; judgment in Case No. 19CR20808 reversed and remanded
for entry of judgment reflecting adjudication for a single count of first-degree
sexual abuse, remanded for resentencing, otherwise affirmed; judgment in Case
No. 19CR20814 affirmed June 8, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSEPH R. NUNN,
Defendant-Appellant.
Washington County Circuit Court
19CR20808, 19CR20814;
A174723 (Control), A174724
511 P3d 90
Eric Butterfield, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section and Morgen E. Daniels, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
PER CURIAM
Judgment in Case No. 19CR20808 reversed and remanded
for entry of judgment reflecting adjudication for a single
count of first-degree sexual abuse; remanded for resentenc-
ing; otherwise affirmed. Judgment in Case No. 19CR20814
affirmed.
268 State v. Nunn
PER CURIAM
In this consolidated appeal, defendant appeals two
judgments. In Case No. 19CR20814, defendant was found as
guilty except for insanity of one count of aggravated harass-
ment, ORS 166.070. In Case No. 19CR20808, defendant was
found guilty except for insanity of one count of first-degree
unlawful sexual penetration, ORS 163.411, two counts of
first-degree sexual abuse, ORS 163.427, and one count of
attempted first-degree rape, ORS 163.375; ORS 161.405. In
both cases, the trial court ruled that defendant was compe-
tent to stand trial, and, after trial, defendant was placed
under the jurisdiction of the Psychiatric Security Review
Board.
On appeal, in his first assignment of error, which
concerns both cases, defendant challenges the trial court’s
determination that defendant was competent to stand trial.
We reject that assignment without discussion.
In his second assignment of error, which concerns
only Case No. 19CR20808, defendant contends that the trial
court plainly erred when it failed to merge the two guilty
except for insanity verdicts for first-degree sexual abuse
into a single adjudication of guilty except for insanity of
first-degree sexual abuse. The state concedes that the trial
court plainly erred. We agree with and accept the state’s
concession.
Further, we exercise our discretion to correct the
error. We have exercised our discretion to correct a trial
court’s plain error in failing to merge verdicts in prior cases.
See, e.g., State v. Sheikh-Nur, 285 Or App 529, 533, 398 P3d
472, rev den, 361 Or 886 (2017) (“[T]he presence of an addi-
tional conviction on defendant’s criminal record misstates
the nature and extent of defendant’s conduct.” (Internal quo-
tation marks omitted.)); State v. Valladares-Juarez, 219 Or
App 561, 564-65, 184 P3d 1131 (2008) (“[W]e cannot identify
any strategic reason that defendant may have had for not
objecting to the entry of separate * * * convictions.”). Those
same considerations persuade us to exercise our discretion
in this case.
Cite as 320 Or App 267 (2022) 269
Judgment in Case No. 19CR20808 reversed and
remanded for entry of judgment reflecting adjudication for
a single count of first-degree sexual abuse; remanded for
resentencing; otherwise affirmed. Judgment in Case No.
19CR20814 affirmed.