Opinion
101234863 A148942.
2013-03-20
STATE of Oregon, Plaintiff–Respondent, v. Arnold A. VALENZUELA, aka Arnold Andrew Valenzuela, Defendant–Appellant.
Multnomah County Circuit Court. Kenneth R. Walker, Judge. Peter Gartlan, Chief Defender, and David O. Ferry, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Kathleen Cegla, Senior Assistant Attorney General, filed the brief for respondent.
Multnomah County Circuit Court.
Kenneth R. Walker, Judge.
Peter Gartlan, Chief Defender, and David O. Ferry, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Kathleen Cegla, Senior Assistant Attorney General, filed the brief for respondent.
Before SCHUMAN, Presiding Judge, and WOLLHEIM, Judge, and DUNCAN, Judge.
PER CURIAM.
Defendant was convicted of second-degree assault, ORS 163.175, and unlawful use of a weapon, ORS 166.220, after he stabbed a victim with a knife. On appeal, defendant argues that the trial court committed plain error by failing to merge the guilty verdicts on the two offenses into a single conviction. See State v. Ryder, 230 Or.App. 432, 434–35, 216 P.3d 895 (2009) (accepting the state's concession that the trial court plainly erred in entering two separate convictions for second-degree assault and unlawful use of a weapon, where “[b]oth of those charges arose out of defendant's concurrent conduct against the same victim—that is, defendant unlawfully used a knife, a dangerous weapon, against that victim and, by doing so, did intentionally and knowingly cause her physical injury”). The state concedes that this case is materially indistinguishable from Ryder and that the trial court should have merged the guilty verdicts into a single conviction for second-degree assault. We agree with and accept the state's concession and, for the reasons expressed in Ryder, 230 Or.App. at 435, 216 P.3d 895, exercise our discretion to correct the error.
Convictions on Counts 2 and 3 reversed and remanded with instructions to enter a single conviction for second-degree assault; remanded for resentencing; otherwise affirmed.