State v. Burlew

PER CURIAM Defendant appeals her convictions for conspiracy to deliver a controlled substance, ORS 475.992(1); ORS 161.450(1), delivery of a controlled substance, ORS 475.992(1), and possession of a controlled substance. ORS 475.992(4). The state concedes that the trial court erred in entering separate convictions and sentences. We accept the concession. ORS 161.485(3); State v. McNamer, 80 Or App 418, 421, 722 P2d 51 (1986). The state argues, nonetheless, that we should not reach the merger question, because defendant failed to raise it below. Alleged errors will not be addressed on appeal unless preserved in the lower court, except errors of law apparent on the face of the record. ORAP 7.19(5). As in State v. McNamer, supra, the egregious error is apparent on the face of the record. Remanded with instructions to vacate the convictions for conspiracy to deliver a controlled substance and possession of a controlled substance and to resentence on the conviction for delivery of a controlled substance.