State v. Hernandez

                                   270

   Submitted May 11; convictions on Counts 1 and 3 for delivery of heroin
   and methamphetamine reversed and remanded for entry of convictions
   for attempted delivery of heroin and methamphetamine, remanded for
               resentencing, otherwise affirmed June 8, 2022


                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
            WALTER MAURICIO HERNANDEZ,
                 Defendant-Appellant.
              Douglas County Circuit Court
                 19CR37752; A175060
                                

   Kathleen E. Johnson, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen E. Daniels, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jonathan N. Schildt, Assistant
Attorney General, filed the brief for respondent.
  Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
   PER CURIAM
   Convictions on Counts 1 and 3 for delivery of heroin and
methamphetamine reversed and remanded for entry of convictions for attempted delivery of heroin and methamphetamine; remanded for resentencing; otherwise affirmed.
Cite as 

 (2022)                             271

        PER CURIAM
         After a jury trial, defendant was convicted of unlawful delivery of heroin, ORS 475.850 (Count 1); unlawful possession of heroin, ORS 475.854 (Count 2); unlawful delivery
of methamphetamine, ORS 475.890(2) (Count 3); and unlawful possession of methamphetamine, ORS 475.894 (Count 4).
Each charge was alleged to involve a substantial quantity of
a controlled substance, ORS 475.925(1)(b), (c). With regard
to Counts 1 and 3, the state’s theory of delivery at trial was
based on State v. Boyd, 

, 

, rev den,

 (1988)—possession with intent to deliver.
        After this case was tried, we decided State v. Hubbell,

, 

 (2021), rev allowed, 

 (2022), in which we overruled Boyd and held that an
“attempted transfer” as used in the definition of “delivery,”
ORS 475.005(8), refers to a particular act of transferring,
“not possession with a more generalized intent to deal the
drugs at some undetermined point in the future.” Hubbell,

.
         On appeal, defendant raises eight assignments of
error. Our disposition as to the first two assignments of error
obviates the need to address assignments of error three
through eight. In his first assignment of error, defendant
contends that the trial court plainly erred when it allowed
Count 1—unlawful delivery of heroin—to be considered by
the jury when the state failed to present legally sufficient
evidence to convict defendant of Count 1. In his second
assignment of error, defendant contends that the trial court
plainly erred when it allowed Count 3—unlawful delivery of
methamphetamine—to be considered by the jury when the
state failed to present legally sufficient evidence to convict
defendant of Count 3.
         With regard to defendant’s first two assignments of
error, the state concedes that, given our decision in Hubbell,
the evidence was legally insufficient to support defendant’s
convictions on Counts 1 and 3, and that his convictions on
Counts 1 and 3 are plainly erroneous. We agree and accept
the state’s concession. Further, we exercise our discretion
to correct the error for the reasons expressed in State v.
272                                                     State v. Hernandez

Jury, 

, 

 (2002), rev den, 

 (2003) (failure to raise the issue was justified because
existing authority was to the contrary and raising it would
have been futile; correction serves the ends of justice; and
the error was not harmless).1
         But, as in Hubbell, we conclude on this record that,
in finding defendant guilty of the completed crimes of delivery, the jury necessarily found that defendant took a “substantial step” toward the commission of the crimes of delivery of heroin and methamphetamine. See State v. Carr, 

, 

 (2022). We therefore reverse
the delivery convictions on Counts 1 and 3 and remand
for entry of convictions for the lesser-included crimes of
attempted delivery of heroin and methamphetamine and for
resentencing.
         Convictions on Counts 1 and 3 for delivery of heroin
and methamphetamine reversed and remanded for entry of
convictions for attempted delivery of heroin and methamphetamine; remanded for resentencing; otherwise affirmed.




    1
      The state “does not contest this court exercising its discretion to review for
plain error in this case,” although it “maintains that that discretionary review
may not be appropriate in every case where defendant raises an unpreserved
sufficiency [of the evidence] challenge under Hubbell.”