State v. Vargas

Under ORS 138.222(2)(a), the appellate court is only precluded from reviewing challenges to convictions that address the length of the sentence when the sentence is within its presumptive range.

Defendant appealed convictions on two counts of felony assault in the fourth degree. Defendant argued that the convictions should be merged into one conviction. The State argued that ORS 138.222(2)(a) precludes the Court's ability to merge the convictions on review. ORS 138.222(2)(a) states that “the appellate court may not review… [A]ny sentence that is within the presumptive sentence prescribed by the rules of the Oregon Criminal Justice Commission.” The Court found that this only applies to challenges that address the length of the sentence that is within the presumptive range. This statute does not preclude review by the Court of “aspects of a presumptive sentence other than the length of the sentence imposed.” Since Defendant is not challenging the length of the sentence, the Court can review this case. The Court held that Oregon’s Anti-Merger statute, ORS 161.067, does not apply to the facts in this case and therefore there is an error as a matter of law. Reversed and remanded for resentencing with instructions to merge the convictions.