State v. Davis-Pinney

In similar situations where the trial court erroneously prohibited merger, “the Court vacated convictions where the trial court erroneously concluded that ORS 161.067(3) precluded merger and remanded for the trial court to consider the potential applicability of ORS 161.067(2).” State v. Reeves, 250 Or App 294, 280 P3d 994 (2012).

Defendant appealed a judgment of conviction for multiple offenses, including two counts of witness tampering, Counts 12 and 13. Defendant assigned error to the trial court’s determination to not merge his guilty verdicts on Counts 12 and 3. On appeal, Defendant argued that the trial court’s decision was erroneous because State v. Jenkins held that the two counts he was convicted of do not constitute separate statutory provisions and no other provision would prohibit the merger. In response, the State conceded that in light of State v. Jenkins, the trial court erred by concluding that ORS. 161.067(1) prohibited merger of Defendant’s Counts, but there was still evidence that would allow a re-sentencing court to decide whether the facts prohibited a merger under ORS. 161.067(3). In similar situations where the trial court erroneously prohibited merger, “the Court vacated convictions where the trial court erroneously concluded that ORS 161.067(3) precluded merger and remanded for the trial court to consider the potential applicability of ORS 161.067(2).” State v. Reeves, 250 Or App 294, 280 P3d 994 (2012). The Oregon Court of Appeals concluded that the trial court erred under State v. Jenkins and that it was appropriate to remand to trial court to determine whether the merger was prohibited.
Convictions on Counts 12 and 13 vacated; remanded with instructions to determine whether those counts merge in view of ORS 161.067(3) and entry of conviction or convictions, and for resentencing; otherwise affirmed.