State v. Menchu

                                     160

     Submitted May 26, 2020; convictions on Counts 2 and 3 reversed and
remanded for entry of judgment of conviction of one count of first-degree sexual
  abuse, convictions on Counts 5, 6, and 7 reversed and remanded for entry of
judgment of conviction for one count of first-degree sexual abuse, remanded for
              resentencing, otherwise affirmed February 3, 2021


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                   JOSE DAVID MENCHU,
                  aka Jose Sanchez-Sanchez,
                     Defendant-Appellant.
                Washington County Circuit Court
                     18CR23927; A168990
                                 

   Andrew Erwin, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Adam Holbrook, Assistant Attorney
General, filed the brief for respondent.
  Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
   PER CURIAM
   Convictions on Counts 2 and 3 reversed and remanded for
entry of judgment of conviction of one count of first-degree
sexual abuse; convictions on Counts 5, 6, and 7 reversed and
remanded for entry of judgment of conviction for one count
of first-degree sexual abuse; remanded for resentencing;
otherwise affirmed.
Cite as 

 (2021)                              161

        PER CURIAM
        Defendant was convicted on five counts of first-degree sexual abuse, ORS 163.427, 10 counts of third-degree
sexual abuse, ORS 163.415, and one count of giving false
information to a peace officer in connection with a warrant,
ORS 162.385. He was acquitted of two other charges. On
appeal from his judgment of conviction, he raises six assignments of error. We reject without discussion defendant’s first
assignment of error. And for the reasons set forth in State v.
Chorney-Phillips, 

, 

 (2020), we reject
defendant’s sixth assignment of error related to the court’s
nonunanimous jury instruction.
          In defendant’s second and third assignments of error,
he argues that the trial court erred at the time of sentencing
by failing to merge the guilty verdicts on Counts 2 and 3 and
by failing to merge the guilty verdicts on Counts 5, 6, and 7.
Defendant argues—and the state concedes—that Counts 2
and 3 constituted a single criminal episode and Counts 5,
6, and 7 constituted another single criminal episode and
that there was an insufficient pause between the criminal
violations within each criminal episode to support separate
punishment for each of the violations. ORS 161.067(3). The
state’s concession is well taken and we accept it; the court
erred in not merging the guilty verdicts on Counts 2 and 3
into a single conviction for first-degree sexual abuse and in
not merging the guilty verdicts on Counts 5, 6, and 7 into
a single conviction for first-degree sexual abuse. Because
the case must be remanded for resentencing as a result, we
need not address defendant’s fourth and fifth assignments
of error.
          Convictions on Counts 2 and 3 reversed and
remanded for entry of judgment of conviction of one count
of first-degree sexual abuse; convictions on Counts 5, 6, and
7 reversed and remanded for entry of judgment of conviction for one count of first-degree sexual abuse; remanded for
resentencing; otherwise affirmed.