State v. Mills

Per State v. Lauers, first-degree arson convictions arising under the same section of the criminal code may be merged. However, an assignment of error for failure to merge is not preserved unless it is presented before the trial court during the sentence hearing.

Defendant appealed a judgment for conviction of three counts first-degree arson and one count second-degree arson. He assigned as error the failure of the trial court to merge all four convictions. The defendant argued before the trial court that the three first-degree arson counts were brought under the same statutory provision (ORS 167.325(1)(a)(B)) and, per State v. Lauers, should be merged. The state conceded that the trial court erred in not merging the conviction, and the Court of Appeals agreed. However, Defendant failed to preserve the assignment of error for the second-degree arson conviction, because he never presented any arguments before the trial court regarding that conviction during his sentencing hearing. Convictions for first-degree arson reversed and remanded with instructions to enter a judgment of conviction for one count of first-degree arson and for resentencing; otherwise affirmed.