State v. Tenorio-Guzman

FILED: September 30, 2009

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

JOSE MANUEL TENORIO-GUZMAN,

Defendant-Appellant.

Marion County Circuit Court
07C45210
A137287

John B. Wilson, Judge.

Submitted on April 03, 2009.

Peter Gartlan, Chief Defender, Appellate Division, and Mary-Shannon Storey, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. 

John R. Kroger, Attorney General, Erika L. Hadlock, Acting Solicitor General, and Douglas F. Zier, Assistant Attorney General, filed the brief for respondent.

Before Edmonds, Presiding Judge, and Wollheim, Judge, and Sercombe, Judge.

PER CURIAM

Reversed and remanded with instructions to enter conviction for one count of unlawful delivery of methamphetamine, reflecting that defendant was convicted on both theories, and for resentencing; otherwise affirmed.

PER CURIAM

Defendant appeals two convictions for unlawful delivery of methamphetamine.  ORS 475.890.  He asserts that the trial court erred in entering separate convictions on the two counts of delivery of methamphetamine, which were based on "separate theories of guilt for the same criminal act."  Although defendant acknowledges he failed to raise the issue before the trial court, he argues we should review it as error apparent on the face of the record, citing to State v. Ascencio-Galindo, 220 Or App 600, 188 P3d 392, rev den, 345 Or 175 (2008) (reviewing as plain error and correcting trial court's improper failure to merge two convictions where multiple counts represented different theories of guilt for the same criminal act).  The state concedes that this court should exercise its discretion and remand the case for imposition of a single conviction of delivery of methamphetamine and for resentencing.

We agree with and accept the state's concession and exercise our discretion to correct the error.

Reversed and remanded with instructions to enter conviction for one count of unlawful delivery of methamphetamine, reflecting that defendant was convicted on both theories, and for resentencing; otherwise affirmed.