State v. Wigglesworth

PER CURIAM

Defendants were found guilty of conspiracy to deliver a controlled substance, ORS 161.450, delivery of a controlled substance, ORS 475.992(1), and possession of a controlled substance. ORS 475.992(4).¹ At sentencing, the trial court merged the delivery charge into the conspiracy charge in each case and imposed separate concurrent sentences on the charges of conspiracy and possession.

Defendants contend that they cannot be sentenced separately for conspiracy to deliver a controlled substance and for possession of the same controlled substance. The state concedes that, because it cannot be assumed that the verdicts on the two charges were predicated on separate quantities of cocaine, each conviction for possession of a controlled substance, the conviction on which the trial court imposed the less severe sentence, should be vacated. State v. Clark, 98 Or App 478, 779 P2d 215 (1989).

Defendants’ other assignments need no discussion.

Conviction and sentence for conspiracy affirmed in each case; conviction and sentence for possession of controlled substance vacated in each case.

1 Although the cases were briefed and argued separately, we have consolidated them for the purpose of decision.