State v. JOON BUM KO

Defendant appeals a judgment of conviction of two counts of violating a court’s stalking protective order, ORS 163.750 (a felony); two counts of telephonic harassment, ORS 166.090; and one count of stalking, ORS 163.732. His appeal concerns only Counts 1 and 2, violating a court’s stalking protective order. At sentencing, the prosecution acknowledged that Counts 1 and 2 represented separate theories for violation of the same statute, based on a single incident. The trial court entered a judgment of conviction and sentence that stated that “Count 2 merges with Count 1 for sentencing purposes.”

On appeal, defendant contends that the trial court erred in merging the two counts for sentencing only and that it should have merged the guilty verdicts on Counts 1 and 2. The state concedes error. We agree. State v. White, 346 Or 275, 211 P3d 248 (2009); State v. Lepierre, 235 Or App 391, 394-95, 232 P3d 982 (2010). A remand for resentencing is therefore required. ORS 138.222(5)(b) (“If 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.”).

Convictions on Counts 1 and 2 reversed and remanded with instructions to enter judgment of conviction for one count of violating a court’s stalking protective order reflecting that defendant was found guilty on both theories and for resentencing; otherwise affirmed.