State v. Skaggs, 364 P.3d 355

Defendant pleaded no contest to three felony counts: delivery of heroin within 1,000 feet of a school (Count 1), unlawful delivery of heroin (Count 2), and unlawful possession of heroin (Count 3).
Trial court sentenced: 34 months’ imprisonment (Count 1) with 36 months’ post-prison supervision; concurrent 18 months (Count 2) with 24 months’ P.P.S.; and 18 months’ supervised probation (Count 3).
On appeal the State conceded the court plainly erred by not merging Count 1 (delivery within 1,000 feet) and Count 2 (unlawful delivery) into a single conviction.
The court agreed merger was required and invoked precedent and discretionary review to correct the unpreserved error.
The State urged correction by entry of a corrected judgment only (no resentencing) because the sentences were concurrent and would be unaffected.
The panel held ORS 138.222(5)(b) requires remand for resentencing when felony convictions are reversed/merged and at least one felony conviction remains, so the case was reversed and remanded for merger and resentencing; otherwise affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether convictions for delivery and delivery within 1,000 feet of a school must merge	State conceded they should merge (plain error)	Defendant argued (and court accepted) merger was required	Court: convictions should have merged; exercise discretion to correct plain error
Whether correction may be effected by entry of a corrected judgment without resentencing	State: remand only to enter corrected judgment; resentencing unnecessary because sentences concurrent and unaffected	Defendant: remand for resentencing required under ORS 138.222(5)(b) when felony convictions are reversed/merged	Court: remand for resentencing is mandatory under ORS 138.222(5)(b) when at least one felony remains
Whether appellate court should exercise discretion to correct unpreserved plain error	State supported correction; no tactical reason counsel failed to object; minimal burden on courts	Not argued to oppose correction	Court: exercised discretion to correct plain error (citing Camacho-Alvarez factors)
Whether prior cases cited by State mandate only corrected judgment, not resentencing	State relied on assorted precedents to avoid resentencing	Defendant pointed to controlling ORS provision and cases requiring resentencing	Court: rejects State's reliance on inapplicable cases; follows ORS 138.222(5)(b) and controlling precedents requiring resentencing

State v. Rodriguez-Gomez, 242 Or. App. 567 (court of appeals conclusion that delivery and delivery-within-1,000-feet verdicts should merge)
State v. Villarreal, 266 Or. App. 699 (court reversed and remanded for resentencing after finding delivery convictions should have merged)
State v. Camacho-Alvarez, 225 Or. App. 215 (factors supporting corrective exercise of appellate discretion for plain error)
State v. Link, 260 Or. App. 211 (remand for resentencing under ORS 138.222(5)(b) is mandatory even if sentence may remain the same)
State v. Rodvelt, 187 Or. App. 128 (explaining sentencing grid consequences and need for resentencing when convictions change)
State v. Gallegos, 208 Or. App. 488 (rejecting argument resentencing unnecessary because sentence would be identical)
Ailes v. Portland Meadows, Inc., 312 Or. 376 (appellate court may review legal errors apparent on the record)