State v. Racicot ( 1991 )

DE MUNIZ, J.

Defendant appeals from consecutive sentences total-ling 60 years imposed after his convictions on seven counts. He argues that the trial court erred in imposing consecutive sentences, because it failed to make findings justifying the sentences as required by ORS 137.123(4). We vacate the consecutive sentences and remand for resentencing.

Before the passage of Ballot Measure 10 in 1986, ORS 137.122¹ governed the imposition of consecutive sentences. ORS 137.122(4) provided that the court had discretion to impose consecutive sentences “only if the court finds” the conditions stated in subsubsections (4) (a) or (b). In addition, subsection (6) provided that, whenever the court imposes a consecutive sentence, “it shall state its reasons for doing so and make all required special findings on the record at the time of sentencing.” Therefore, ORS 137.122 required the trial court not only to find that consecutive sentences were authorized by subsection (4) but also to state why it was imposing consecutive sentences and to make “special findings” in support of its reasons.

In 1987, the legislature codified section 12 of Ballot Measure 10 as ORS 137.123. The only significant difference between ORS 137.123 and ORS 137.122 is that subsection (6) has been deleted. ORS 137.123 provides:

“(1) A sentence imposed by the court may be made concurrent or consecutive to any other sentence which * * * is simultaneously imposed upon the same defendant. The court may provide for consecutive sentences only in accordance with the provisions of this section. A sentence shall be deemed to be a concurrent term unless the court’s order expressly provides for consecutive sentences.

«* * * * *

“(3) When a defendant has been found guilty of more than one criminal offense arising out of a continuous and uninterrupted course of conduct, the sentences imposed for each resulting conviction shall be concurrent unless the court complies with the procedures set forth in subsection (4).

“(4) The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds:

“(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense; or

“(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury, or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course or [sic] conduct.” (Emphasis supplied.)

Ballot Measure 10 impliedly repealed ORS 137.122, and ORS 137.123 is now the law. DeAngelo v. Schiedler, 306 Or 91, 757 P2d 1355 (1988). A sentencing court no longer is required to “state its reasons” for imposing consecutive sentences or to make “special findings on the record” after it finds that consecutive sentences are authorized by subsection (4). The statement of reasons and special findings formerly required by 137.122(6) related to why the court imposed consecutive sentences in the case before it. The statement did not relate to whether a consecutive sentence could be imposed. Under ORS 137.123(4), the sentencing court must still find that a consecutive sentence is authorized.

The provisions of ORS 137.123 make it clear that consecutive sentences may be imposed “only in accordance with the provisions of this section”; that sentences imposed for more than one conviction arising out of a continuous and uninterrupted course of conduct “shall be concurrent unless the court complies with the procedures set forth in subsection (4)”; and that a court may impose consecutive sentences “only if the court finds” that the situation falls within either subsection 4(a) or (b). We cannot know whether the court made that finding if it does not tell us.

Our review of the trial court’s action is limited to determining whether the sentence imposed exceeds the maximum allowable by law or is unconstitutionally cruel and unusual. ORS 138.040; State v. Donovan, 307 Or 461, 464, 770 P2d 581 (1989). Determining whether a criminal offense “was not merely an incidental violation of a more serious crime,” or whether a criminal offense “caused or created a substantial risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a substantial risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course of conduct,” may require the trial court to choose from competing versions of the facts or to make a qualitative judgment about the relative seriousness of facts or circumstances involved in the commission of a crime. In many cases, unless the record before us shows some determination by the trial court that circumstances authorizing a consecutive sentence under (4) (a) or (b) are present, we would have to weigh the facts to determine whether a consecutive sentence is authorized, i.e., whether the sentence is lawful or exceeds the maximum allowable by law. We do not review de novo; we review only for errors of law appearing on the record. ORS 138.220. Requiring the trial court initially to find or determine on the record that a consecutive sentence is authorized under the statute is the only interpretation of ORS 137.123(4) that is consistent with our limited scope of review of criminal sentences.²

It is the trial court’s function to impose sentences and to do so in accordance with the authorizing statute. Because it did not do so in this instance, we remand for resentencing.

Convictions affirmed; consecutive sentences vacated; remanded for resentencing.

1 ORS 137.122 provides, in part:

“(4) The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds:

“(a) The criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime; or

“(b) The criminal offense for which a consecutive sentence is contemplated caused or created a substantial risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a substantial risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course of conduct.

“(5) When the court makes the findings provided in paragraph (a) or (b) of subsection (4) of this section, it may, in its discretion, impose a consecutive sentence for each criminal conviction arising out of a continuous and uninterrupted course of conduct for which such a finding has been made. The court may impose a consecutive sentence if the court finds that the actual term of incarceration would not otherwise be commensurate with the seriousness of the total course of defendant’s criminal conduct or the public would not be adequately protected if a concurrent term of imprisonment were imposed.

“(6) Whenever the court imposes a consecutive sentence under this section, it shall state its reasons for doing so and make all required special findings on the record at the time of sentencing.”

2 The dissent is incorrect that “decisions of this court * * * hold that, without the findings requirement of subsection (6), the statute does not require a trial court to make findings on the record.” 106 Or App at 563. In State v. Franske, 92 Or App 353, 758 P2d 418, rev den 307 Or 77 (1988), the defendant challenged the imposition of consecutive sentences on the ground that the trial court had not met the requirements of ORS 137.122. Because ORS 137.123 had impliedly repealed ORS 137.122, we rejected the defendant’s argument. The conclusion that the defendant could not claim error under ORS 137.122 was not a holding that consecutive sentences could be imposed without a finding that the sentence was authorized under the statute.