State v. Campbell

FILED: March 11, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

EDWARD PATRICK CAMPBELL,

Defendant-Appellant.

Tillamook County Circuit Court
076075
A136907

Mari Garric Trevino, Judge pro tempore.

Submitted on February 06, 2009.

Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Rolf C. Moan, Acting Solicitor General, and Doug M. Petrina, Senior Assistant Attorney General, filed the brief for respondent.

Before Haselton, Presiding Judge, and Armstrong, Judge, and Rosenblum, Judge.

PER CURIAM

Reversed and remanded with instructions to merge convictions for unlawful possession of a firearm and for resentencing; otherwise affirmed.

PER CURIAM

Defendant appeals from his conviction on two counts of unlawful possession of a firearm, which were based, respectively, on ORS 166.250(1)(a) and ORS 166.250(1)(b),(1) arguing that the trial court erred in failing to merge the two convictions.  The state concedes that the trial court so erred.  Specifically, the state acknowledges that

"[t]he scope, history, and evolution of the [two] provisions demonstrate that the legislature intended to create a single crime of unlawful possession of a firearm by concealment.  For merger purposes, ORS 166.250(1)(a) and (1)(b) constitute a single 'statutory provision' and offenses merge when, as here, a defendant violates both subsections by possessing a single firearm in the same criminal episode by concealing the firearm on his person while in a vehicle."

(Emphasis in original.)  The state's concession is well founded, see State v. White, 341 Or 624, 147 P3d 313 (2006), and we accept it.  See also State v. Lopez-Lorenzo, 226 Or App 269, ___ P3d ___ (2009); State v. Merrick, 224 Or App 471, 197 P3d 624 (2008).

Reversed and remanded with instructions to merge convictions for unlawful possession of a firearm and for resentencing; otherwise affirmed.

1. ORS 166.250 provides, in part:

            "(1)  * * * [A] person commits the crime of unlawful possession of a firearm if the person knowingly:

            "(a)  Carries any firearm concealed upon the person; [or]

            "(b)  Possesses a handgun that is concealed and readily accessible to the person within any vehicle[.]"