State v. Newmann

Under ORAP 5.45(1), the Court of Appeals may, at its discretion, review an unpreserved assignment of error as “an error of law apparent on the record” if: (1) the error is one of law; (2) the error is “apparent,” and (3) the error appears “on the face of the record.”

Defendant appealed the trial court's entry of three separate convictions for attempted murder with a firearm. On appeal, Defendant argued that the trial court erred by entering three separate convictions based on only two attempts to shoot the victim. The State argued that the matter was unpreserved, and therefore the Court should not review it for plain error because Defendant plead “no contest” to the charges. The error was elligible for unpreserved review under ORAP 5.45(1) because the State recognized during oral arguments that failure to merge the convictions was plain error and the separate convictions did not require proof of different elements. The Court chose to exercise its discretionary review in light of several factors, including the gravity of the error, the “possibility that [a] defendant made a strategic choice not to object,” and the “interest of the judicial system in avoiding unnecessary sentencing proceedings[.]” Reversed and remanded for merger of convictions and resentencing.