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FILED: December 1, 2004
IN THE COURT OF APPEALS OF THE STATE OF OREGON TYRONE EARL WALTON, Appellant,
v.

S.
FRANK THOMPSON,
Superintendent,
Oregon State Penitentiary,



Respondent.
97C10421; A112207 Appeal from Circuit Court, Marion County. Jamese Rhoades, Judge. Submitted on record and briefs March 10, 2004. James N. Varner filed the opening brief. Tyrone Walton filed the supplemental brief pro se. Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Kathleen Cegla, Assistant
Attorney General, filed the brief for respondent.
Before Haselton, Presiding Judge, Brewer, Chief Judge,* and Ortega, Judge.
HASELTON, P. J.
Affirmed.

* Brewer, C. J., vice Deits, J. pro tempore

HASELTON, P. J.
Petitioner appeals from the trial court's denial of his petition for post-conviction relief, asserting that the trial court erred in its disposition of various claims. We write only to address petitioner's assertion that the trial court erred in rejecting his claim that his consecutive sentences on two counts of aggravated murder were unlawful under State v. Barrett, 331 Or 27, 10 P3d 901 (2000). For the reasons that follow, we affirm.
Petitioner was convicted in 1988 of two counts of aggravated murder, one count of felony murder, and one count of robbery and was sentenced to death. Both counts of aggravated murder related to the same victim, but each alleged a different theory of the crime. In State v. Walton, 311 Or 223, 809 P2d 81 (1991) (Walton I), the Oregon Supreme Court affirmed petitioner's convictions but vacated the death sentence and remanded the case for a new penalty -phase proceeding. On remand, petitioner's counsel argued that the court lacked authority to impose consecutive sentences on the two counts of aggravated murder "because they involve[d] one victim and one single act." Counsel acknowledged, however, that the case law did not support his position. Petitioner was sentenced to consecutive life sentences with 30-year minimum terms on the two counts of aggravated murder. The court merged the felony murder conviction into one of the aggravated murder convictions but did not merge the robbery conviction.
Petitioner appealed again, making several arguments. First, he argued that the court, on remand, erred in
imposing consecutive sentences on the aggravated murder convictions because in Walton I he had challenged the sentence on only one of those convictions. (1) We rejected petitioner's premise, noting that the "death sentence applied to both convictions [for] aggravated murder." State v. Walton, 134 Or App 66, 71, 894 P2d 1212, rev den , 321 Or 429 (1995) (Walton II). Petitioner further argued that the court erred in failing to merge his robbery conviction into the aggravated murder conviction that was based on the robbery. We agreed that, under State v. Tucker, 315 Or 321, 845 P2d 904 (1993), robbery was a lesser

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