State v. Nash

I concur in all of the majority’s opinion save the portion concerning merger. Defendant did not raise the merger question at trial, and I would hold that he waived it now. See State v. Applegate, 39 Or App 17, 591 P2d 371, (1979).

The majority acknowledges the principle of Apple-gate but explains, by way of footnote,

"* * * Among the factors weighing toward consideration of the issue [of merger, in spite of defendant’s failure to raise it below,] are the novelty of the issue and whether the trial court meted out consecutive rather than concurrent sentences.” 41 Or App 795, n 3, 598 P2d 1300, n 3