STATE OF OREGON v. DWAYNE EDWARD ABRAHAM (2017)

Court of Appeals of Oregon.

STATE OF OREGON, Plaintiff-Respondent, v. DWAYNE EDWARD ABRAHAM, Defendant-Appellant.

Multnomah County Circuit Court 110833195

Decided: February 23, 2017

Before Duncan, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erica Herb, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Susan Yorke, Assistant Attorney General, filed the brief for respondent.

PER CURIAM

Defendant appeals from a judgment imposing convictions for, among other things, unlawful delivery of cocaine within 1,000 feet of a school, ORS 475.882 (Count 1), and unlawful delivery of cocaine, ORS 475.880 (Count 2). We reject without written discussion defendant's first assignment of error, and the assignment of error raised in defendant's pro se supplemental brief. In his remaining assignment of error, defendant contends that the trial court plainly erred when it failed to merge the guilty verdicts on Counts 1 and 2 as required by ORS 161.067(1). See State v. Villarreal, 266 Or App 699, 700, 338 P3d 801 (2014) (correcting plain error where verdicts for delivery of cocaine and delivery of cocaine within 1,000 feet of a school should have merged into a single conviction). The state concedes that the trial court plainly erred. We agree, accept the state's concession, and, for the reasons expressed in State v. Valladares-Juarez, 219 Or App 561, 564-65, 184 P3d 1131 (2008), exercise our discretion to correct the error.

Convictions on Counts 1 and 2 reversed and remanded for entry of judgment of conviction for one count of unlawful delivery of cocaine within 1,000 feet of a school; remanded for resentencing; otherwise affirmed.

PER CURIAM

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