STATE v. TRICKEL (2015)

In this criminal case, defendant was charged by indictment with one count of possession of a stolen vehicle (PSV), ORS 819.300, and one count of unauthorized use of a vehicle (UUV), ORS 164.135. A jury found defendant guilty of both counts, and the trial court entered a judgment of conviction and sentence.

Defendant appeals the judgment, asserting that the trial court plainly erred by failing to merge the verdicts on the PSV and UUV counts. See ORS 161.067 (governing merger). Defendant contends that (1) a guilty verdict on a PSV count merges with a guilty verdict on a UUV count when the counts are based on the same conduct or criminal episode, (2) the trial court's failure to merge the PSV and UUV verdicts in this case constitutes plain error, and (3) it is appropriate for us to exercise our discretion to review the plain error and remand the case for resentencing. The state agrees, and so do we. See State v. Noe, 242 Or.App. 530, 532–33, 256 P3d 166 (2011) (holding that guilty verdicts on PSV and UUV counts merge when the counts are based on the same conduct or criminal episode); see also State v. Brown, 263 Or.App. 751, 752, 330 P3d 1249 (2014) (holding that a trial court's failure to merge PSV and UUV verdicts was plain error, exercising discretion to review the error for the reasons stated in State v. Camacho–Alvarez, 225 Or.App. 215, 216–17, 200 P3d 613 (2009), and remanding for resentencing).

Reversed and remanded with instructions to merge the guilty verdicts for possession of a stolen vehicle and unauthorized use of a vehicle into a single conviction for unauthorized use of a vehicle and for resentencing; otherwise affirmed.

PER CURIAM.