State v. Sheikh-Nur, 398 P.3d 472

Defendant convicted in four consolidated criminal cases after a single bench trial; convictions included multiple sexual offenses and drug delivery counts.
In Case No. C130849CR the jury (court) returned separate guilty verdicts for: unlawful delivery of methamphetamine to a minor (Count 5) and unlawful delivery of methamphetamine (Count 6).
Sentences were entered in each charging instrument as separate judgments; appeals from the four consolidated cases were themselves consolidated.
Defendant argued on appeal that Counts 5 and 6 should have been merged because Count 6 is a lesser-included of Count 5; error was unpreserved but argued as plain error.
The State conceded the merger error for the methamphetamine counts; the court agreed, reversed Counts 5 and 6, and ordered entry of a single conviction for delivery to a minor.
The court held that ORS 138.222(5)(b) required remand for resentencing of all convictions tried together (i.e., all consolidated cases), not only the judgment in C130849CR.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Counts 5 and 6 (delivery to minor and delivery) should have merged	State conceded separate convictions were improper because delivery-to-minor is an enhanced form of delivery	Defendant: Counts arose from same act; Count 6 is lesser-included of Count 5; trial court plainly erred by not merging	Court accepted concession, reversed Counts 5 and 6, directed entry of a single conviction for delivery to a minor (plain error corrected)
Whether reversal of a conviction requires remand for resentencing under ORS 138.222(5)(b)	State: remand should be limited to the judgment (charging instrument) in which reversal occurred	Defendant: because charging instruments were consolidated for trial under ORS 132.560(2), the entire consolidated “case” is subject to resentencing	Court held ORS 138.222(5)(b) requires remand for resentencing of all convictions tried together; remanded all consolidated cases for resentencing
Whether appellate court should address defendant’s unpreserved merger claim for multiple first-degree sexual abuse counts	State disputes merger claim on merits	Defendant urged plain error merger of three first-degree sexual-abuse convictions into one	Court declined to decide because resentencing remand will give trial court first opportunity to address the unpreserved merger issue

State v. Rodriguez-Gomez, 242 Or. App. 567 (trial court plainly erred by failing to merge related methamphetamine delivery convictions)
State v. Skaggs, 275 Or. App. 557 (reversal for merger error requires resentencing under ORS 138.222(5)(b))
State v. Rodvelt, 187 Or. App. 128 (precedent the legislature sought to codify regarding remand/resentencing for merger errors)
State v. Silver, 283 Or. App. 847 (reaffirming that merger reversals trigger ORS 138.222(5)(b) remand)
State v. Hagan, 140 Or. App. 454 (policy rationale: protect integrity of trial court’s sentencing package)