State v. Bedford

                                    515

   This is a nonprecedential memorandum opinion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 July 29; convictions on Counts 1 and 2 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 August 31, 2022


                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
               JOHN CURTIS BEDFORD,
         aka John Bedford, aka John C. Bedford,
    aka John Curris Bedford, aka John Curtil Bedford,
                  Defendant-Appellant.
              Douglas County Circuit Court
                  19CR10744; A175105

  Ann Marie Simmons, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the briefs for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
   Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
  JAMES, P. J.
   Convictions on Counts 1 and 2 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.
516                                         State v. Bedford

        JAMES, P. J.
         Defendant appeals from a judgment of conviction for
unlawful delivery of heroin, ORS 475.850 (Count 1), unlawful
delivery of methamphetamine, ORS 475.890 (Count 2), unlawful possession of heroin, ORS 475.854 (Count 3), unlawful possession of methamphetamine, ORS 475.894 (Count 4), fleeing
or attempting to elude a police officer, ORS 811.540 (Count 5)
and reckless driving, ORS 811.140 (Count 6), raising multiple assignments, and supplemental assignments, of error.
We address his supplemental assignments of error first.
         In defendant’s first and second supplemental assignments of error he challenges his convictions on Counts 1 and 2
for completed delivery of narcotics based on a Boyd theory.
State v. Boyd, 

, 

 (1988). He
raises a plain-error challenge to those convictions, arguing
that the evidence was insufficient under State v. Hubbell,

, 

 (2021). The state concedes the error, and that concession is well taken. However,
the parties dispute the remedy that we should apply. We
agree with the state that, based on this record, the proper
remedy is remand for entry of attempted delivery of heroin,
ORS 475.850, on Count 1, and attempted unlawful delivery
of methamphetamine, ORS 475.890, on Count 2. Our resolution on that issue obviates the need to address defendant’s
third through fifth supplemental assignments of error.
         Defendant’s first through sixth assignments of error
raise unpreserved challenges relating to a departure factor, OAR 213-008-0002(1)(b)(J) (Factor J). A jury may find
Factor J when it determines that “[t]he degree of harm or
loss attributed to the current crime of conviction was significantly greater than typical for such an offense.” OAR
213-008-0002(1)(b)(J). Defendant argues that Factor J cannot apply when the state establishes only a risk of harm,
not actual harm. We need not decide the merits of that
argument, however, because here the state proved, and the
jury found, four other departure factors. Given that we are
remanding this case for resentencing, that trial court will
decide anew which, if any, departure factors it would rely
upon, if it imposed a departure sentence. Similarly, in light
of our disposition, we need not address defendant’s seventh
Nonprecedential Memo Op: 

 (2022)           517

and eighth assignments of error, which raise unpreserved
merger challenges. See State v. Sheikh-Nur, 

, 

, rev den, 

 (2017) (the need for
a remand for resentencing obviates the need to consider a
merger issue; “[t]he trial court will have the opportunity to
address that unpreserved [merger] issue in the first instance
on remand”).
         Convictions on Counts 1 and 2 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.