State v. Bradshaw

No. 62               January 29, 2025                    575

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                STATE OF OREGON,
                 Plaintiff-Respondent,
                           v.
           IMELDA CANTU BRADSHAW,
            aka Imelda Cantu-Bradshaw,
                 Defendant-Appellant.
            Clatsop County Circuit Court
   22CR22999, 22CR24201; A181568 (Control), A181569

   Dawn M. McIntosh, Judge.
   Submitted November 25, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jeff J. Payne, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Hellman, Judge, and
Mooney, Senior Judge.
   ORTEGA, P. J.
    In Case Number 22CR22999, convictions for attempted
first-degree assault and UUW reversed and remanded for
entry of judgment of conviction for attempted first-degree
assault; remanded for resentencing; otherwise affirmed. In
Case Number 22CR24201, affirmed.
576                                                  State v. Bradshaw

          ORTEGA, P. J.
         In this consolidated appeal, defendant appeals
from judgments of conviction in Case Nos. 22CR22999 and
22CR24201. As relevant here, after a bench trial in Case
No. 22CR22999, defendant was found guilty of attempted
first-degree assault, ORS 163.185 (Count 1), and unlawful
use of a weapon (UUW), ORS 166.220 (Count 2).1
         On appeal, defendant argues—and the state
concedes—that the trial court erred when it did not merge
her conviction for UUW with her conviction for attempted
first-degree assault. We agree and accept the state’s concession. Because defendant’s conviction for UUW was based
on a theory that defendant used—rather than possessed or
carried—a weapon, the UUW conviction merges with the
attempted first-degree assault conviction. See, e.g., State v.
Zolotoff, 

, 

, rev den, 

 (2012) (accepting the state’s concession that guilty
verdicts for attempted first-degree assault and UUW merge
when they arise from the same incident and when the UUW
charge was predicated on an attempted use theory); State
v. Ryder, 

, 

 (2009) (accepting
the state’s concession that the trial court erred in failing
to merge the defendant’s guilty verdicts for second-degree
assault and UUW, where the latter crime was charged as
attempting to use a dangerous weapon unlawfully against
another).
         In Case Number 22CR22999, convictions for
attempted first-degree assault and UUW reversed and
remanded for entry of judgment of conviction for attempted
first-degree assault; remanded for resentencing; otherwise
affirmed. In Case Number 22CR24201, affirmed.




   1
     Defendant does not raise any issues on appeal with regard to Case Number
22CR24201.