State v. Ryder

Aug 26, 2009

060734387, A137497

Versions:216 P.3d 895

230 Or. App. 432

2009 Ore. App. LEXIS 1139

2009 WL 2602646

HASELTON, P. J.

Dеfendant appeals from his convictions, following trial, of a variety оf crimes, including first-degree kidnapping, ORS 163.235(1); second-degree assault, ORS 163.175; attempted second-degree assault, ORS 161.405; and unlawful use of a weapon, ORS 166.220; all arising from conduct at the Oregon Zoo in Portland on July 26, 2006. Defendant assigns error to the denial of his motions for judgment of acquittal on Count 1 (first-degree kidnapping) and Count 6 (second-degree assault) and also raises unpreserved challenges to the trial court’s fаilure to merge certain convictions and to its imposition of a consecutive sentence on one of the convictions that he contends should have been merged. We reject without discussion defendant’s assignments of error pertaining to the denials of the motions for judgment of acquittаl, but conclude that the trial court’s failure to merge two of the convictions (Counts 6 and 12) constitutes an error of law apparent on the face of the record, ORAP 5.45(1), warranting the affirmative exercise of our discretion under Ailes v. Portland Meadows, Inc., 312 Or 376, 382 n 6, 823 P2d 956 (1991). Accordingly, we reverse and remand for the trial court to merge defendant’s convictions on Counts 6 and 12 and for resentencing, but otherwise affirm.

For purposes of our review, the material circumstances arе limited ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍and uncontroverted. The trial court convicted defendant of, inter alia, second-degree assault (Count 6) and unlawful use of a weapon (Count 12). 1 Both оf those charges arose out of defendant’s concurrent conduct against the same victim — that is, defendant unlawfully used a knife, a dangerous weapon, against that victim and, by doing so, did intentionally and knowingly cause her physiсal injury.

Although defendant did not object to the trial court’s failure to merge his сonvictions on those two counts, he asserts, and the state concеdes, that the court’s failure in that regard constitutes an error of law aрparent on the face of the record. ORAP 5.45(1). We accept thаt concession as well founded. See, e.g., State v. Morton, 110 Or App 40, 41, 820 P2d 463 (1991) (accepting state’s concession that trial court had erred ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍in failing to merge the defendant’s convictions under ORS 163.175 and ORS 166.220).

We finally conclude that it is appropriate to exercisе our discretion under Ailes to correct that error. That is so for at least thrеe reasons. First, the gravity of the error — viz., the imposition of an additional felony conviction — strongly militates in favor of the exercise of discretion. See, e.g., State v. Valladares-Juarez, 219 Or App 561, 564, 184 P3d 1131 (2008) (exercising discretion under Ailes to correct the trial court’s error in failing to merge the defendant’s two first-degrеe kidnapping convictions into a single conviction; noting that “the error in ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍this case is grave; the presence of an additional kidnapping conviction on defendant’s criminal record misstates the nature and extent of defendant’s conduct”); State v. Hathaway, 207 Or App 716, 718, 143 P3d 545, rev den, 342 Or 254 (2006) (exercise of Ailes discretion to correct erroneous fаilure to merge justified, in part, because, “although the effects of mergеr are not always immediately apparent, they can be real and varied” (internal quotation marks omitted)). Second, as in Valladares-Juarez, “we cannot identify аny strategic reason that defendant may have had for not objecting” to the trial court’s failure to merge the convictions. 219 Or App at 564-65. Finally, “the burden on the judicial system in amending its judgment and resentencing defendant is minimal.” State v. Camacho-Alvarez, 225 Or App 215, 217, 200 P3d 613 (2009). 2

Reversed and remаnded with instructions to merge conviction for unlawful use of a weapon (Cоunt 12) ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍into conviction for assault in the second degree (Count 6) and for resеntencing; otherwise affirmed.

Notes

ORS 163.175 provides, in part:

“(1) A person commits the crime of assault in the second degree if the person:

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“(b) Intentionally or knowingly causes physicаl injury to another by means of a deadly or dangerous weapon[.]”

ORS 166.220 provides, in part:

“(1) A pеrson commits the crime of unlawful use of a weapon if the person:

“(a) Attempts to use unlawfully against another, or carries or possesses with intent ‍‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‌‍to use unlawfully against another, any dangerous or deadly weapon as defined in ORS 161.01S[.J’

(Emphasis added.) Count 12 was charged consistently with the emphasized language.

Given our disposition and the scope of remand under ORS 138.222(5)(a), we do not reach and resolve defendant’s other unpreserved contentions of error.