State v. Polanco

PER CURIAM

Defendant was convicted of conspiracy to deliver a controlled substance (heroin) and two counts of delivery and two counts of possession of a controlled substance (heroin and cocaine). He appeals, assigning four errors. We vacate the conspiracy conviction and otherwise affirm.

In his fourth assignment,¹ defendant contends, and the state concedes, that the trial court erred in not merging his conviction for conspiracy to deliver heroin with his conviction for delivery of heroin. We agree. ORS 161.485(3); State v. McNamer, 80 Or App 418, 421, 722 P2d 51 (1986). We therefore vacate the conspiracy conviction.²

Remanded with instructions to vacate conviction for conspiracy to deliver a controlled substance; otherwise affirmed.

1 We have considered and reject without comment defendant’s first, second and third assignments of error.

2 Defendant also contends in his fourth assignment that his convictions for possession of the two controlled substances should have been merged and that his convictions for delivery of the two likewise should have been merged. Because defendant did not raise those issues at sentencing, we do not consider them for the first time on appeal. See State v. Barnes, 67 Or App 182,186-87, 677 P2d 1103 (1984).