State v. Silver

Under ORS 138.222(5)(b), failure to merge multiple counts into a single guilty verdict requires the reversal of a judgment of conviction which triggers an automatic remand for resentencing on all affirmed counts. State v. Skaggs, 275 Or App 557, 560-61, 364 P.3d 355 (2015), rev den, 359 Or 667 (2016).

Defendant appealed a conviction for multiple counts of animal abuse. Counts One and Six were a felony count and a misdemeanor count of first-degree animal abuse. Defendant assigned error to the trial court’s entry of separate convictions on each count.  On appeal, Defendant argued that the trial court’s failure to merge the guilty verdicts for those counts required remand for resentencing. The State conceded that, under State v. Skaggs, 275 Or App 557, 560-61, 364 P.3d 355 (2015), rev den, 359 Or 667 (2016), the two counts should have been merged and that ordinarily this would require remand for resentencing.  However, the State argued that Skaggs should be overruled, and that the trial court’s merger error did not “require resentencing” because the sentence on Count Six ran concurrently with a longer sentence on Count One. Under ORS 138.222(5)(b), failure to merge multiple counts into a single guilty verdict involves the reversal of a judgment of conviction which triggers an automatic remand for resentencing on all affirmed counts. The Court of Appeals declined to overrule Skaggs, and affirmed that failure to merge errors are governed by ORS 138.222(5)(b), which required remand for resentencing. Reversed and remanded.