State v. Baker

It is important to consider “whether all elements of one offense are subsumed within the elements of the other offense” when determining whether two counts should merge as one. While “underlying factual circumstances of the crime” might seemingly overlap to a degree, the statutory duplication of all elements are what analysis hinges on.

Defendant, convicted of burglary and theft, argued that the trial court erred in not merging his two convictions into a single conviction under ORS 161.067(1). The State responded that the Court did not have the requisite authority by reason of Defendant's claim of error falling “outside the scope of issues that are reviewable on appeal from a guilty plea.” This Court's recent decision of State v. Davis (September 10, 2014) affirms its authority over this issue. Defendant contended that his convictions should have been merged because both counts have the same subcategory enhancement factor. This Court stated that subcategory enhancement factors are used for sentencing purposes and do not stipulate the elements of a crime, and that while having the same subcategory enhancement factors do not preclude the merging of convictions, it also does not “lead to the merger of multiple counts.” Affirmed.