dissenting.
I join in the dissenting opinion of Jones, J. But what is most significant about this case, I think, is what it does to the normal requirement that a party claiming error raise it at the earliest possible time or be deemed to have waived it. I therefore add these few remarks to focus on that portion of the majority opinion that attempts to justify our consideration of this case in spite of an obvious procedural difficulty.
The “error” that the majority today discovers and *250corrects was not raised at trial. The majority says the following about the failure to raise this issue in the trial court:
“We consider it appropriate to review the sentencing issue in conjunction with the same issue in State v. Crotsley, 308 Or 272, 779 P2d 600 (1989), also decided today. * * * Unlike many trial errors, a failure to object to an unlawful sentence does not require a retrial and the error often can be determined without reference to evidence. There is no claim that the failure to object misled the court or prejudiced the opposing party, and we are not persuaded that it is likely to have done so.”
(308 Or at 241.) Each of these sentences deserves closer scrutiny.
1. “We consider it appropriate to review the sentencing issue in conjunction with the same issue in State v. Crotsley, * * * also decided today.”
That this case is announced together with State v. Crotsley, supra, is a fortuity. Review in this case was not allowed for the purpose of creating a decisional companion to Crotsley. In fact, this court allowed review in Crotsley, a case in which the error argued to us had also been argued below, after review had been allowed in this case, and to address an entirely different issue — the meaning of ORS 161.062 and 161.067.1 The reference to Crotsley disguises the majority’s actual purpose in this case, viz., correction of an “error” the majority apparently considers too serious to let pass.
We have the power to correct error (if any there be) in such circumstances; I would be the last to deny it. Neither would I deny that the exercise of that power is, ultimately, a question committed to the conscience of each of us. But the fact that the power belongs to each one of us does not relieve us from the obligation to exercise it in a principled way. If the majority would honestly own up to the fact that what is involved here, from its point of view, is a disagreement as to when that power should be exercised, the casual reader of the case at least could see where the majority got off track.
2. “Unlike many trial errors, a failure to object to an *251unlawful sentence does not require a retrial and the error often can be determined without reference to evidence.”
The first difficulty with this sentence is that it is unlikely that any error was committed here. The majority opinion answers the pivotal argument of the dissent by Jones, J., simply by declaring that, although ORS 165.007(1) lists two different ways of committing forgery in separate paragraphs separately lettered, the 1971 legislature that enacted the statute did not intend that those two subsections of the statute constitute different offenses. (308 Or at 243) But whatever the legislature may have intended by the enactment of the forgery statute in 1971, a later legislature and the people, by initiative, have demonstrated that they intend something else now. When the people announce for themselves a policy different from that which the legislature created fifteen years earlier, it seems to me our function is to see if the newer doctrine can be applied, not to throw roadblocks in its way. At the very least, the forgery statute could be read to state two different crimes. And, if it could, our job is to follow the policy set by the people themselves and say that it does state two different crimes, whatever some of us may think of the wisdom of such a policy.2
The underlying merits aside, however, this sentence also is surprisingly naive about the process when it says that “error often can be determined without reference to evidence.” That is true, I submit, only for those who do not wish to face up to the fact that sophisticated defense counsel may intentionally ignore a trial court error on the theory that it is better to let sleeping dogs lie.
*252This defendant was charged with and convicted of four offenses. The trial judge, prior to sentencing, “merged” two of the charges — one count of forgery, and the count of attempted theft — for sentencing purposes. He then sentenced defendant on a total of three charges. Even supposing that the trial judge erred in following this procedure, defense counsel might keep silent about it because he felt that there was a possibility the judge would impose a sentence less advantageous to the defendant if the court correctly understood the extent of its authority. (He might have been concerned in this case, for instance, that the court, upon learning that it could not sentence on both forgeries, would decide that the attempted theft conviction did not merge and that a consecutive sentence on that charge was in order.) Counsel in such a situation is certain to stay quiet from now on, because the court today gives defendants a free shot at review on this issue, whether or not they make any pretense of objecting. This is a game we should not encourage.
It also is worth noting that the criteria relied on here are (1) the fact that the “error” does not require retrial, and (2) the idea that the “error” can be determined without reference to evidence. Does this mean that the majority would decide the case differently if (1) consideration of the “error” would require a retrial, or (2) consideration of the “error” would require reference to the evidence? One wonders how much adherence there will be to these factors in a later case.
3. “There is no claim that the failure to object misled the court or prejudiced the opposing party, and we are not persuaded that it is likely to have done so.”
Any reader of this sentence must be taken aback by the majority’s reference to the fact that there is “no claim” by the state of prejudice to it or to the sentencing judge. In view of its willingness to let the defendant have his sentence reviewed by this court when he made “no claim” of prejudice when it would have made a difference, one might wonder if the majority is unconsciously following a double standard here. If we are going to entertain defendant’s claims without requiring an objection, the least fairness calls for is a vigorous inquiry on our own into any possible prejudice, rather than standing on the ceremony of saying that the state didn’t claiin any. I perceive no real inquiry, much less a vigorous one, in the majority opinion.
*253For the foregoing reasons, as well as for the reasons expressed in the separate dissent of Jones, J., I dissent.
Of course, the meaning of ORS 161.062 and 161.067 ought to be what this case is about, too. Unaccountably, however, the majority has chosen to read those two statutes out of existence, at least for the purposes of the forgery statute.
On its merits, the impact of this opinion can best be summed up by the following colloquy:
“FIRST LAWYER: I hear the court decided the Kizer case. How did it come out?
“SECOND LAWYER: The defendant gets a new sentencing hearing.
“FIRST LAWYER: Why’s that?
“SECOND LAWYER: Because, the court says, the legislature didn’t intend forging a check and then passing it to be two different crimes resulting in two different sentences.
“FIRST LAWYER: That’s interesting. How did the court explain the effect of the 1985 statute [ORS 161.062(1)] or the 1986 initiative measure [ORS 161.067(1)]?
“SECOND LAWYER: The court said those statutes were overruled by the 1971 legislature.”