State v. Zolotoff, 365 P.3d 131

Defendant convicted of multiple counts (attempted 1st-degree assault, 1st-degree burglary with upward durational departure, unlawful use of a weapon, and menacing); trial court imposed concurrent sentences on most counts and denied SB 936 (early-release) consideration on key counts.
On appeal, this court held that Counts 2 (attempted assault) and 4 (unlawful use of a weapon) must be merged and issued a remand for resentencing.
At the resentencing hearing the trial court: merged Count 4 into Count 2, but stated it believed its authority was limited to that correction and repeatedly declined to reconsider the previously imposed sentencing terms.
Defendant asked for leniency at the hearing and counsel renewed requests to reduce sentences; the court nevertheless reimposed the prior sentences (with merger) and retained the SB 936 ineligibility findings.
Defendant appealed, arguing the court failed to hold an actual resentencing and, alternatively, that plain error occurred; he also raised unpreserved challenges to SB 936 denial and the departure sentence on Count 3.
The Court of Appeals concluded the trial court misconceived the scope of the remand (plain legal error) and reversed the resentencing judgment, remanding for a new resentencing hearing where defendant may present evidence and argument on all surviving counts.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Scope of trial court authority on remand for resentencing	Appellant (defendant) argued court failed to conduct full resentencing and thus deprived him of opportunity to seek sentence changes	State argued remand only required merger and trial court properly limited action to that correction	Held: ORS 138.222(5) and precedents require resentencing on all surviving counts; trial court had broad authority to impose new lawful sentences and erred by treating remand as limited to merger
Preservation / plain error review	Defendant asserted his efforts at hearing preserved the claim; alternatively sought plain-error review	State argued defendant invited/failed to preserve the issue	Held: Claim was unpreserved but court found plain error (clear legal mistake apparent on the record) and exercised discretion to correct it
Right to present evidence/argument at resentencing	Defendant argued he was denied meaningful resentencing opportunity	State contended counsel agreed remand was only for merger	Held: Defendant entitled to offer evidence and argument at resentencing; remand vacated so defendant can present arguments on sentencing
Power to rely on prior findings at resentencing (Blakely/Jury issues)	N/A in this appeal as trial court reimposed prior findings	N/A	Held (as guidance): trial court may rely on prior valid jury/findings made at original proceedings; but must make new findings if prior findings were legally defective

State v. Edson, 329 Or 127 (explains remand for resentencing when sentencing error exists)
State v. Link, 260 Or App 211 (remand for resentencing required when some convictions are reversed and others affirmed)
State v. Rodvelt, 187 Or App 128 (merger can affect the sentencing package; resentencing required)
State v. Partain, 349 Or 10 (trial court may impose different sentences on any counts after remand)
State v. Hylton, 230 Or App 525 (trial court may rely on properly made prior jury findings at resentencing)
State v. Hollingquest, 241 Or App 1 (resentencing permits consideration of any arguments about sentence constitutionality)
State v. Link, 260 Or App 211 (reiterated: resentencing is mandatory on surviving convictions)
Ailes v. Portland Meadows, Inc., 312 Or 376 (factors for exercising discretion to review unpreserved error)
State v. Corkill, 262 Or App 543 (plain error test)
State v. Wyatt, 331 Or 335 (preservation requirement for appellate review)