State v. Hathaway

FILED: October 28, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

JASON LEE HATHAWAY,

Defendant-Appellant.

Deschutes County Circuit Court
03FE1205MS
A136959

Michael C. Sullivan, Judge.

Submitted on September 29, 2009.

Peter Gartlan, Chief Defender, and David Ferry, Deputy Public Defender, Legal Services Division, Office of Public Defense Services, filed the brief for appellant.  Jason Lee Hathaway filed the supplemental brief pro se.

John R. Kroger, Attorney General, Jerome Lidz, Solicitor General, and Doug M. Petrina, Senior Assistant Attorney General, filed the brief for respondent.

Before Edmonds, Presiding Judge, and Sercombe, Judge, and Deits, Senior Judge.

PER CURIAM

Remanded with instructions to merge first-degree burglary convictions and for resentencing; otherwise affirmed.

PER CURIAM

Defendant was convicted of among other crimes, two counts of first-degree burglary, ORS 164.225.  Both counts alleged the same entry of a home owned by a husband and wife, but the counts alleged separate crimes against each owner.  On appeal, defendant argues that the trial court erred in failing to merge his convictions for first-degree burglary (counts 4 and 5) because the homeowners were a single victim for purposes of the burglary statute.  ORS 161.067(2)(e) (joint owners are a single victim for determining the number of separate burglary convictions).  The state concedes that the trial court erred in that regard, and we agree and accept the concession.  State v. Sanchez-Alfonso, 224 Or App 556, 198 P3d 946 (2008), rev den, 346 Or 258 (2009).  On remand, the trial court should enter a judgment merging the two convictions for first-degree burglary.

Defendant raises a number of other contentions regarding his convictions and sentences.  We reject his remaining assignments of error without discussion.

Remanded with instructions to merge first-degree burglary convictions and for resentencing; otherwise affirmed.