STATE v. AYALA (2019)

Court of Appeals of Oregon.

STATE of Oregon, Plaintiff-Respondent, v. Freddy AYALA, Defendant-Appellant.

A168986

Decided: December 04, 2019

Before Lagesen, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Ingrid A. MacFarlane, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent.

Defendant pleaded guilty to one count of possession of a stolen vehicle, ORS 819.300, and one count of unauthorized use of a vehicle, ORS 164.135. On appeal, defendant argues that the trial court plainly erred by failing to merge the verdicts on these counts. The state concedes that, under State v. Noe, 242 Or. App. 530, 256 P.3d 166 (2011), the verdicts on these offenses should merge. We accept the state’s concession on that point. The state also agrees with defendant that the court’s failure to merge regarding these counts constitutes plain error. See State v. Trickel, 270 Or. App. 250, 347 P.3d 344 (2015); State v. Brown, 263 Or. App. 751, 752, 330 P.3d 1249 (2014). Again, we agree. We therefore exercise our discretion to review for the reasons set forth in State v. Camacho-Alvarez, 225 Or. App. 215, 216-17, 200 P.3d 613 (2009).

Reversed and remanded for entry of judgment of conviction for one count of unauthorized use of a vehicle; remanded for resentencing; otherwise affirmed.

PER CURIAM

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