This case is before us for the second time. In our previous decision, we applied State v. Hall,
In the first of those remaining assignments, defendant asserts that the trial court violated his right to a jury trial under the Sixth Amendment to the United States Constitution by instructing the jury that they could return a nonunanimous verdict. That assertion fails under our precedent. State v. Bowen,
In the second of those remaining assignments, defendant asserts that the trial court erred by failing to merge the guilty verdicts on Count 3, for manufacture of cocaine, and Count 4, for manufacture of cocaine involving a substantial quantity of the drug. Defendant did not object to the trial court’s failure to merge those verdicts and asks us to exercise our discretion to correct the assigned error as an “error of law apparent on the record,” also known as a “plain error.” See ORAP 5.45(1) (authorizing review of errors apparent on the record); State v. Brown,
The state indicted defendant for several drug-related crimes, including the counts at issue here, Count 3 and Count 4, which were alleged to have been committed as “part of the same act or transaction.” Count 3 and Count 4 alleged the elements of manufacture of cocaine, as defined by ORS 475.880; they also alleged additional facts, commonly referred to as “subcategory factors,” to increase the crime seriousness of the charged manufacturing crime pursuant to ORS 475.900. See State v. Baker,
Defendant tried his case to a jury. On Count 3, the jury found defendant guilty of manufacture of cocaine, but it did not find that the manufacture was a commercial drug offense. On Count 4, the jury found defendant guilty of manufacture of cocaine, and it found that the manufacture involved a substantial quantity of the drug. Thus, the jury found defendant guilty of two counts of manufacture of cocaine, based on the same act or transaction, one without a subcategory factor (Count 3), for which the crime-seriousness rating for purposes of the sentencing guidelines grid is 4, ORS 475.900(3)(a), and one with the substantial-quantity subcategory
The trial court entered separate convictions for Count 3 and Count 4. In its judgment, the trial court stated that Count 3 “merges with Count 4 for purposes of sentencing.” Defendant did not object to the trial court’s entry of separate convictions for Count 3 and Count 4. As mentioned, defendant asks us to review the alleged error as an error apparent on the record.
We may review an unpreserved error as an “error apparent on the record” if three requirements are satisfied: (1) the error is one “of law”; (2), the error is “apparent,” that is, “the legal point is obvious, not reasonably in dispute”; and (3) the error appears “on the face of the record,” in that “[w]e need not go outside the record or choose between competing inferences to find it [.]” Brown,
Whether a trial court erred by failing to merge guilty verdicts is a question of law, which we review for errors of law, and, when doing so, we are bound by the trial court’s findings of historical fact, provided that they are supported by constitutionally sufficient evidence in the record. State v. Watkins,
Merger is governed by ORS 161.067. Under that statute, if a defendant is found guilty of multiple counts based on the same conduct and the conduct “violates two or more statutory provisions,” the counts merge unless “each provision requires proof of an element that the others do not[.]” ORS 161.067(1). If a defendant is found guilty of multiple counts based on the same conduct and the conduct violates “only one statutory provision,” the counts merge unless the conduct “involves two or more victims,” ORS 161.067(2), or each violation is “separated from other such violations by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent,” ORS 161.067(3).
Here, the only issue is whether defendant’s conduct violated two statutory provisions with different elements. (The state does not argue, and given the charges could not argue, that defendant’s conduct involved two victims or involved two statutory violations that were separated by a sufficient pause.)
As described, the jury found defendant guilty of Count 3 for manufacture of cocaine and Count 4 for manufacture of cocaine involving a substantial quantity of the drug. Thus, the only difference between the two counts was the substantial-quantity subcategory factor in Count 4. That difference does not preclude merger because, as we have already held, subcategory factors do not constitute elements for merger purposes. State v. Wright,
In Wright, the defendant was convicted of, among other crimes, two counts of manufacture of a controlled substance; one alleged that the defendant’s manufacture was a commercial drug offense and the other alleged that the defendant’s manufacture involved a substantial quantity of the controlled substance. Id. at 161. On appeal, the defendant asserted that the trial court erred by failing to merge the manufacturing counts into a single conviction. We agreed. Id. at 163. Relying on Merrill,
Under Wright, the trial court in this case erred by failing to merge the guilty verdicts on Count 3 and Count 4 into a single conviction. Although the trial court stated in its judgment that Count 3 “merges with Count 4
Having concluded that the trial court erred, we further conclude that the error is “apparent” and it “appears on the face of the record,” Brown,
The factors we consider in deciding whether to exercise our discretion to correct plain error include the nature of the case, the gravity of the error, the competing interests of the parties, and the ends of justice in the particular case. Ailes,
Here, we choose to exercise our discretion to correct the error for the following reasons. First, the error is grave; the presence of an additional unlawful manufacture of cocaine conviction on defendant’s criminal record “misstates the nature and extent of defendant’s conduct and could have significant implications with regard to any future calculation of his criminal history.” State v. Valladares-Juarez,
Reversed and remanded with instructions to merge Count 3 into Count 4 and for resentencing; otherwise affirmed.
Notes
In his brief, defendant raises five assignments of error. In our previous decision, we reversed on his first assignment of error, rejected his second and third without written discussion, and did not address his fourth and fifth. Unger I,
In his brief, defendant asserted that Count 4 should merge into Count 3, apparently believing that Count 3 was the more serious offense. As the state noted in its brief, defendant’s assertion may have been based on the trial court’s misidentification of Count 4 as a having a crime-seriousness rating of 1, instead of 8.
As noted, in its judgment, the trial court stated that it was merging Count 3 with Count 4 “for purposes of sentencing.”