Bumgarner v. Nooth, 295 P.3d 52

Petitioner convicted in 2004 of two counts each rape, first-degree unlawful sexual penetration, and kidnapping, plus one count of third-degree assault and other charges.
Post-conviction relief granted on trial counsel’s alleged failure to argue merger of duplicate convictions at sentencing.
Sentencing court did not merge offenses; judge imposed consecutive 730-month term.
Post-conviction court relied on Barrett and Parkins to find merger was unsettled and counsel should have argued it.
State appeals contended merger was unsettled law at the time; petitioner cross-appeals on other grounds.
This court affirms the post-conviction relief, holding counsel’s failure to raise merger violated the constitution and warrants resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel's failure to argue merger was ineffective	Bumgarner argues merger required under Parkins/White	State argues law was unsettled; reasonable not to argue	Yes; counsel ineffective; merger required
Whether the rape, unlawful sexual penetration, and kidnapping verdicts should have merged	Convictions based on different theories; should merge	Law uncertain; merger not clearly mandated then	Yes; required under Parkins/White; merger appropriate

Parkins v. State, 346 Or 333 (2009) (merger of multiple sexual-abuse convictions arising from same conduct under ORS 161.067(1))
State v. White, 202 Or App 1 (2005) (merger of burglary convictions based on same conduct)
Barrett v. State, 331 Or 27 (2000) (merger/aggregation principles for aggravated offenses; statutory interpretation governing multiple sentences)
Lucio-Camargo v. State, 186 Or App 144 (2003) (analysis of whether multiple offenses violate a single statutory provision)
State v. Crotsley, 308 Or 272 (1989) (separate first and third degree convictions for single rape act; law on merger unsettled at time)