State v. Jones

PER CURIAM

Defendant appeals a judgment of conviction for unlawful possession of methamphetamine, possession of a burglary tool or theft device, unauthorized use of a vehicle, and possession of a stolen vehicle. He raises two assignments of error. We reject defendant’s second assignment of error without discussion and write to address his first assignment, in which he contends that the trial court committed plain error in failing to merge the guilty verdict for possession of a stolen vehicle with the guilty verdict for unauthorized use of a vehicle. See State v. Noe, 242 Or App 530, 256 P3d 166 (2011) (guilty verdict for possession of a stolen vehicle merges with guilty verdict for unauthorized use of a vehicle); see also ORAP 5.45; Ailes v. Portland Meadows, Inc., 312 Or 376, 382, 823 P2d 956 (1991) (court has discretion to review unpreserved error of law apparent on the face of the record). The state acknowledges our holding in Noe but contends that Noe was wrongly decided. We adhere to our holding in Noe that all of the elements of possession of a stolen vehicle are subsumed into the elements of unauthorized use of a motor vehicle in a case such as this one, and, for the reasons stated in State v. Camacho-Alvarez, 225 Or App 215, 216, 200 P3d 613 (2009), we conclude that it is appropriate to exercise our discretion to correct the error in this case.

Reversed and remanded with instructions to merge defendant’s convictions for possession of a stolen vehicle and unauthorized use of a vehicle into a single conviction for unauthorized use of a vehicle and for resentencing; otherwise affirmed.