STATE v. RAHMAAN (2017)

Defendant appeals a judgment of conviction for two counts of second-degree robbery (Counts 1 and 2), one count of first-degree burglary (Count 3), two counts of forgery (Counts 4 and 5), two counts of identity theft (Counts 6 and 7), and one count of coercion (Count 8). Defendant raises two assignments of error on appeal.

In her first assignment, defendant assigns error to the trial court sentencing her to 70 months in prison on Count 3 to be served consecutively to her sentence on Count 1. She argues that, under the “shift-to-I” rule, the court could impose a maximum sentence of only 36 months to be served consecutively because the conduct in Counts 1 and 3 were part of the same criminal episode. Defendant asserts that her first assignment of error is preserved, but, in the alternative, argues that we should correct the error as plain error. In her second assignment of error, defendant argues that the trial court plainly erred in entering separate convictions and merging her sentences on Counts 1 and 2 because the court should instead have merged the guilty verdicts on those counts, such that she would have a single conviction for second-degree robbery. The state concedes that the trial court plainly erred with respect to both of defendant's assignments of error.

We agree with and accept the state's concessions. We conclude that it is appropriate to exercise our discretion to correct the plain error for defendant's first assignment of error for the reasons stated in State v. Monro, 256 Or. App. 493, 496-97, 301 P.3d 435, rev. den., 354 Or. 148 (2013), and for defendant's second assignment of error for the reasons stated in State v. Camacho-Alvarez, 225 Or. App. 215, 216-17, 200 P.3d 613 (2009).

Convictions on Counts 1 and 2 reversed and remanded for entry of a judgment of conviction for one count of second-degree robbery; remanded for resentencing; otherwise affirmed.

PER CURIAM