State v. Cathcart

                                    634

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
  Submitted May 23; convictions for attempted first-degree murder and first-degree robbery reversed and remanded for entry of a judgment of conviction for
attempted first-degree murder, remanded for resentencing, otherwise affirmed
                                June 29, 2022


                   STATE OF OREGON,
                    Plaintiff-Respondent,
                              v.
             CHRISTOPHER ALLEN CATHCART,
                   Defendant-Appellant.
                Marion County Circuit Court
                   20CR18702; A175605


   Daniel J. Wren, Judge.
   Frances J. Gray filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Peenesh Shah, Assistant Attorney
General, filed the brief for respondent.
  Before Powers, Presiding Judge, and Lagesen, Chief Judge,
and Hellman, Judge.
   POWERS, P. J.
    Convictions for attempted first-degree murder and
first-degree robbery reversed and remanded for entry of a
judgment of conviction for attempted first-degree murder;
remanded for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2022)            635

        POWERS, P. J.
         Defendant appeals from a judgment convicting him
of attempted murder in the first degree, ORS 161.405 and
ORS 163.107, assault in the first degree, ORS 163.185, and
robbery in the first degree, ORS 164.415. On appeal, defendant raises five assignments of error in which he contends
that the trial court (1) plainly erred by failing to merge the
verdict for first-degree robbery into the verdict for attempted
first-degree murder; (2) plainly erred by imposing the robbery sentence to be partially consecutive to the attempted
murder sentence; (3) plainly erred by imposing the robbery
sentence to be partially consecutive to the assault sentence; (4) erred by imposing restitution for medical expenses
because there was insufficient evidence to establish that
those expenses were reasonable; and (5) erred by imposing
restitution for medical expenses because there was insufficient evidence to establish that those expenses were necessarily incurred. We reject defendant’s challenges to the
restitution award because there was sufficient evidence for
the trial court to conclude that the expenses were necessarily incurred and reasonable.
         The state concedes that the trial court plainly erred
by failing to merge the verdicts for attempted first-degree
murder and first-degree robbery, and we accept that concession. See Martinez v. Cain, 

, 

 (2020) (concluding that ORS 161.067(1) required the
verdicts for first-degree robbery and attempted aggravated
felony murder to merge because there was “no element of
the robbery count that would not have [been] proved in the
felony murder count”). And for the reasons expressed in
State v. Camacho-Alvarez, 

, 

(2009), we exercise our discretion to correct the error, and
we reverse and remand for merger of those guilty verdicts
and for resentencing. Because we remand for resentencing,
we need not reach defendant’s other sentencing challenges.
To the extent that the state argues that the trial court on
remand may “substitute an attempted second-degree murder conviction,” we reject that argument. Our disposition
makes clear that we are remanding for the entry of a judgment of conviction for attempted first-degree murder, and
636                                      State v. Cathcart

the parties are free to raise arguments about the appropriate sentence on remand.
         Convictions for attempted first-degree murder and
first-degree robbery reversed and remanded for entry of a
judgment of conviction for attempted first-degree murder;
remanded for resentencing; otherwise affirmed.