STATE OF OREGON, Plaintiff-Respondent, v. WALTER MAURICIO HERNANDEZ, Defendant-Appellant.
Douglas County Circuit Court 19CR37752; A175060
Court of Appeals of Oregon
June 8, 2022
320 Or App 270 (2022); 512 P3d 475
Kathleen E. Johnson, Judge.
Submitted May 11; convictions on Counts 1 and 3 for delivery of heroin and methamphetamine reversed and remanded for entry of convictions for attempted delivery of heroin and methamphetamine, remanded for resentencing, otherwise affirmed June 8, 2022
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Morgen E. Daniels, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jonathan N. Schildt, Assistant Attorney General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and Kamins, Judge.
PER CURIAM
Convictions on Counts 1 and 3 for delivery of heroin and methamphetamine reversed and remanded for entry of convictions for attempted delivery of heroin and methamphetamine; remanded for resentencing; otherwise affirmed.
After a jury trial, defendant was convicted of unlawful delivery of heroin,
After this case was tried, we decided State v. Hubbell, 314 Or App 844, 500 P3d 728 (2021), rev allowed, 369 Or 504 (2022), in which we overruled Boyd and held that an “attempted transfer” as used in the definition of “delivery,”
On appeal, defendant raises eight assignments of error. Our disposition as to the first two assignments of error obviates the need to address assignments of error three through eight. In his first assignment of error, defendant contends that the trial court plainly erred when it allowed Count 1—unlawful delivery of heroin—to be considered by the jury when the state failed to present legally sufficient evidence to convict defendant of Count 1. In his second assignment of error, defendant contends that the trial court plainly erred when it allowed Count 3—unlawful delivery of methamphetamine—to be considered by the jury when the state failed to present legally sufficient evidence to convict defendant of Count 3.
With regard to defendant‘s first two assignments of error, the state concedes that, given our decision in Hubbell, the evidence was legally insufficient to support defendant‘s convictions on Counts 1 and 3, and that his convictions on Counts 1 and 3 are plainly erroneous. We agree and accept the state‘s concession. Further, we exercise our discretion to correct the error for the reasons expressed in State v. Jury, 185 Or App 132, 57 P3d 970 (2002), rev den, 335 Or 504 (2003) (failure to raise the issue was justified because existing authority was to the contrary and raising it would have been futile; correction serves the ends of justice; and the error was not harmless).1
But, as in Hubbell, we conclude on this record that, in finding defendant guilty of the completed crimes of delivery, the jury necessarily found that defendant took a “substantial step” toward the commission of the crimes of delivery of heroin and methamphetamine. See State v. Carr, 319 Or App 684, 693, 511 P3d 432 (2022). We therefore reverse the delivery convictions on Counts 1 and 3 and remand for entry of convictions for the lesser-included crimes of attempted delivery of heroin and methamphetamine and for resentencing.
Convictions on Counts 1 and 3 for delivery of heroin and methamphetamine reversed and remanded for entry of convictions for attempted delivery of heroin and methamphetamine; remanded for resentencing; otherwise affirmed.