State v. Sheikh-Nur

• Decision Date: 17 May 2017
• Docket Number: A159057,A159055,A159056,A159054 (Control)
• Citation: 398 P.3d 472,285 Or.App. 529
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Yusuf Dahir SHEIKH-NUR, Defendant-Appellant.
• Court: Oregon Court of Appeals

285 Or.App. 529

398 P.3d 472

STATE of Oregon, Plaintiff-Respondent,

v.Yusuf Dahir SHEIKH-NUR, Defendant-Appellant.

A159054 (Control)

A159055

A159056

A159057

Court of Appeals of Oregon.

Argued and submitted December 19, 2016.

May 17, 2017

Meredith Allen, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. Yusuf Dahir Sheikh-Nur filed the supplemental brief pro se.

Peenesh H. Shah, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

ARMSTRONG, P. J.

Defendant appeals judgments in four consolidated cases—Washington County Case Nos. C130331CR, C130849CR, C131055CR, and D125301M—in which he was convicted of multiple sexual offenses committed against a series of victims, and of other crimes. He raises two assignments of error on appeal, both of which pertain to Case No. C130849CR.¹ In his second assignment of error, he contends that the trial court plainly erred in that case in failing to merge guilty verdicts for unlawful delivery of methamphetamine to a minor (Count 5) and unlawful delivery of methamphetamine (Count 6). The state concedes the error, and we agree. We also conclude that it is appropriate for us to exercise our discretion to correct the error. Accordingly, we reverse defendant's convictions on Counts 5 and 6 in Case No. C130849CR and remand for entry of a judgment of conviction for one count of unlawful delivery of methamphetamine to a minor. As we explain below, because that disposition also requires us to remand the case for resentencing under ORS 138.222(5)(b), we need not address defendant's first assignment of error, in which he contends that the trial court also plainly erred in failing to merge guilty verdicts for three counts of first-degree sexual abuse into a single conviction for that offense, a proposition that the state disputes. Instead, the trial court will have the opportunity to address that unpreserved issue in the first instance on remand. See State v. Sauceda , 236 Or.App. 358, 362, 239 P.3d 996 (2010) (declining to address unpreserved argument that the trial court should have merged kidnapping convictions, where case had to be remanded for resentencing due to plain error in not merging burglary convictions, giving the trial court the opportunity to address the contested issue). Finally, we conclude that ORS 138.222(5)(b) requires resentencing of all of the convictions in the consolidated cases.

The facts relevant to the issues raised on appeal are few and undisputed. Defendant was charged, in four separate charging instruments, with multiple sexual offenses involving a series of victims, as well as other crimes. Corresponding with the four charging instruments, the cases were assigned separate case numbers. On the state's motion, those cases were later consolidated under ORS 132.560(2), set out below, 285 Or. App. at 535, 398 P.3d at 475, and the cases were tried together to the court. The court found defendant guilty of many of the charged offenses in each of the cases, including, as pertinent to defendant's assignments of error on appeal, three counts of first-degree sexual abuse, unlawful delivery of methamphetamine to a minor, and unlawful delivery of methamphetamine in Case No. C130849CR.² After a sentencing hearing, the court sentenced defendant in each of the consolidated cases, together with three other cases that had not been consolidated for trial, and entered a separate judgment in each case corresponding to the counts alleged in the respective charging instruments. Defendant separately appealed the judgments in the four consolidated cases, and the appeals were also consolidated.

On appeal, defendant contends in his second assignment of error that, in Case No. C130849CR, "[b]ecause Count 5, charging delivery of methamphetamine to a minor, and Count 6, charging delivery of methamphetamine,were based on the same act against the same victim, and Count 6 is a lesser[-]included offense of Count 5, the trial court should have entered a single conviction for the greater offense." He acknowledges that the error is unpreserved but contends that it is within our discretion to correct it as plain error. See ORAP 5.45(1) ; State v. Brown , 310 Or. 347, 355, 800 P.2d 259 (1990). As noted, the state concedes that the court plainly erred by entering separate convictions on those counts. We agree.

As defined by ORS 475.890,³ unlawful delivery of methamphetamine to a minor is simply an enhanced version of unlawful delivery of methamphetamine; therefore, the court should have entered a single conviction for the former offense. Cf. State v. Rodriguez-Gomez , 242 Or.App. 567, 568, 256 P.3d 169 (2011) (trial court plainly erred in failing to merge verdicts for delivery of methamphetamine and delivery of methamphetamine within 1,000 feet of a school). Accordingly, the state's concession is well-founded, and we accept it. Moreover, as in Rodriguez-Gomez , the relevant considerations weigh in favor of exercising our discretion to correct the error. Among other considerations, the presence of an additional conviction on defendant's criminal record "misstates the nature and extent of defendant's conduct"; furthermore, the state "has no interest in convicting a defendant twice for the same crime." State v. Valladares-Juarez , 219 Or.App. 561, 564, 184 P.3d 1131 (2008).

Consequently, we reverse defendant's convictions on Counts 5 and 6 in Case No. C130849CR and remand for entry of a judgment of conviction for one count of unlawful delivery of methamphetamine to a minor. That disposition also requires a remand for resentencing under ORS 138.222(5)(b), which provides that, "[i]f the appellate court, in a case involving multiple counts of which at least one is a felony, reverses the judgment of conviction on any count and affirms other counts, the appellate court shall remand the case to the trial court for resentencing on the affirmed count or counts." See State v. Skaggs , 275 Or.App. 557, 560-61, 364 P.3d 355 (2015), rev. den. , 359 Or. 667, 379 P.3d 528 (2016) (holding that error in failing to merge guilty verdicts, because it involves the reversal of a conviction, is one that requires resentencing under ORS 138.222(5)(b) ).⁴

The remaining question involves the extent of the remand. That is, is resentencing on remand under ORS 138.222(5)(b) limited to a resentencing of the convictions reflected in the judgment in Case No. C130849CR? Or. does the remand encompass all of the convictions in the four consolidated cases? Defendant contends that, because the four charging instruments were consolidated under ORS 132.560(2), and the court "sentenced the counts of conviction as a package," the consolidated cases become "the case" for resentencing purposes under ORS 138.222(5)(b). The state responds that each charging instrument, or at least each judgment, should be treated as a separate case for purposes of the statute, and resentencing is therefore limited to the counts disposed of in the judgment in which we reverse defendant's conviction—that is, Case No. C130849CR. We agree with defendant that, in the circumstances here, ORS 138.222(5)(b) contemplates resentencing of the four consolidated cases on remand.

The question turns on the meaning of ORS 138.222(5)(b), in particular, the statute's mandate that we "remand the case to the trial court for resentencing" when, in any case that involves a felony, we reverse a conviction on any count and affirm others. (Emphasis added.) It appears that neither we nor the Supreme Court has addressed that specific question.⁵

Before turning to the statute itself, we pause to examine the mechanism under which the cases here were "consolidated for trial." ORS 132.560"sets out circumstances in which multiple charges may or are required to be tried together and, conversely, when they may or must be tried separately." State v. Dewhitt , 276 Or.App. 373, 379, 368 P.3d 27, rev. den. , 359 Or. 667, 379 P.3d 526 (2016) (internal quotation marks omitted). That statute provides:

"(1) A charging instrument must charge but one offense, and in one form only, except that:

" * * * * *

"(b) Two or more offenses may be charged in the same charging instrument in a separate count for each offense if the offenses charged are alleged to have been committed by the same person or persons and are:

"(A) Of the same or similar character;

"(B) Based on the same act or transaction; or

"(C) Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.

"(2) If two or more charging instruments are found in circumstances described in subsection (1)(b) of this section, the court may order them to be consolidated.

"(3) If it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses under subsection (1) or (2) of this section, the court may order an election or separate trials of counts or provide whatever other relief justice requires.

"(4) As used in this section, 'charging instrument' means any written instrument sufficient under the law to charge a person with an offense, and shall include, but not be limited to, grand jury indictments, informations, complaints and uniform traffic, game or boating complaints."

ORS 132.560 (emphasis added).

Here, after filing four separate charging instruments (which, as noted, were assigned four separate case numbers), the state, citing ORS 132.560(1) and (2), moved to consolidate the four cases "on the grounds that they are of the same or similar character, they are connected by a common scheme or plan and under OEC 404(3) evidence in C130849CR is relevant to C131055CR, C130331CR and D125301M." The court granted the motion pro forma , apparently concluding, consistent with the state...