State v. Hardesty , 68 Or. App. 591 ( 1984 )

JOSEPH, C. J.

Defendant appeals from a conviction on two counts of robbery in the first degree and one count of rape in the first degree. He seeks modification of the sentences imposed. We remand for resentencing.

Defendant was originally charged in a six count indictment. After plea negotiations, he was found guilty on the three counts in a stipulated facts trial. The trial court sentenced him to 20 years for each conviction and imposed a mandatory minimum sentence of five years on each, pursuant to ORS 161.610. The court ordered both robbery sentences to be served concurrently but consecutive to the rape sentence. He would have to serve at least 10 years before being eligible for parole.

ORS 161.610(5) provides:

“(5) The minimum terms of imprisonment for felony convictions in which the court finds that the defendant used or threatened to use a firearm shall be as follows:

“(a) Except as provided in subsection (6) of this section, upon the first conviction for such felony, five years.

“(b) Upon conviction for such felony committed after punishment pursuant to paragraph (a) of this subsection, 10 years.

“(c) Upon conviction for such felony committed after imprisonment pursuant to paragraph (b) of this subsection, 30 years.” (Emphasis supplied.)

Defendant argues that the trial court erred in imposing multiple minimum sentences.¹ He submits that the statute allows only one five-year minimum sentence when a defendant is convicted of more than one felony during the course of a “single criminal episode.”² He argues that the statute should be so interpreted, even though it speaks in terms of felony convictions rather than criminal episodes. He concedes that there is no legislative history to support his proposed reading of the statute.

Defendant does not argue that his convictions should have been “merged” for sentencing purposes, because this is not a “merger” case within the meaning of State v. Linthwaite, 295 Or 162, 665 P2d 863 (1983); State v. Cloutier, supra, n 2; or State v. Kessler, 65 Or App 380, 671 P2d 749 (1983), rev allowed 296 Or 638 (1984). The narrow issue is whether ORS 161.610 authorizes imposition of multiple minimum consecutive sentences on a defendant who is convicted of several felonies committed while using a firearm during the course of one criminal transaction.

A statute should be interpreted so that its application is consistent with the legislature’s intent. State v. Linthwaite, supra, 295 Or at 177. In construing ORS 161.610 we look first to the.plain meaning of its words. ORS 161.610(5) prescribes minimum terms of imprisonment for convictions of felonies in which the defendant has used a firearm. ORS 161.610(5)(a), under which defendant was sentenced, provides for a five-year minimum term of imprisonment “upon the first conviction for such felony * * *.” The legislature did not expressly limit the imposition of a minimum sentence to only one conviction when multiple convictions arise out of a single criminal transaction. As a pure matter of fact, defendant can be said to have been convicted simultaneously for three first offenses while armed, but we do not believe that the legislature intended “first conviction” to refer to multiple simultaneous convictions and to subject a defendant to an enhanced sentence for each conviction. Unfortunately, the only thing the legislative history suggests is that the legislature never thought of a situation like this one. Nonetheless, we conclude that it is more consonant with the “use a gun, serve a minimum term” policy of the statute to limit the imposition of the enhanced punishment under ORS 161.610(5) (a) to the first sentence imposed in a multiple offense situation.³

Remanded for resentencing.⁴

1 Defendant’s trial counsel urged the trial court to impose three concurrent 20-year sentences with three five-year minimums, which would have resulted in one five-year minimum term to be served before parole eligibility. On appeal the state does not argue that the issue now argued was not raised below.

2 ORS 131.505(4) provides:

“(4) ‘Criminal episode’ means continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place and circumstances that such conduct is directed to the accomplishment of a single criminal objective.”

The term “criminal episode” has assumed a technical significance in “merger” cases, which we find unnecessary to discuss here. See State v. Cloutier, 286 Or 579, 595, 596 P2d 1278 (1979); State v. Clifton, 64 Or App 550, 669 P2d 353 (1983). To avoid further confusion we refer to defendant’s total criminal conduct as a criminal transaction.

3 The possible application of ORS 144.110 in this case is not before us.

4 The dissent apparently deals with a different statute, even though it cites ORS 161.610(5)(a). Otherwise, there is no accounting for its failure to discuss (let alone quote) the language “upon the first conviction for such felony * *