State v. Warren

EDMONDS, J.

Defendant appeals from his convictions for attempted murder with a firearm, ORS 163.115(1), and assault in the first degree, ORS 163.185. On appeal, defendant makes several assignments of error. We affirm without discussion on all of his assignments of error, except regarding his contention that the trial court erred by imposing consecutive sentences on his convictions. We vacate and remand.

At the trial that resulted in the convictions, there was evidence that the victim encountered defendant and two friends as they were leaving a Portland nightclub. The victim exchanged words with the three men. The jury could have found that defendant took offense to the remarks and “walked” the victim outside the building, while his friends remained inside. Witnesses inside the building heard one or more gunshots. The victim then walked back inside, followed by defendant. At that time, defendant pulled a gun out and shot the victim in the back of the head at close range.

At sentencing, defendant urged:

“There is no question that there was but one criminal episode here, one single act, i.e., one shot fired. In such an event, the statute limits the Court’s discretion to impose consecutive sentences. The first such limitation refers to a ‘defendant’s willingness to commit more than one criminal offense.’ ORS 137.123(5)(a). In the case at bar, with one single shot being fired, the evidence of such ‘willingness’ is altogether lacking. A different scenario might be if one shoots a victim and wounds him but keeps on shooting, for from this could be inferred an intent not to merely injure (Assault) but also to kill.

“The other portion of ORS 137.123(5) which permits the court to impose consecutive sentences arising out of a ‘continuous and uninterrupted course of conduct’ is subparagraph (b) which speaks in terms of an injury to the victim caused by the offense which is ‘greater or qualitatively different’ than the injury from the other offense. * * * ‘Qualitatively’ is not defined in the statute and its ordinary meaning is, referring to quality or kind, as opposed to quantity. Webster’s Third New International Dictionary, p. 1858. The ‘kind’ of injury caused by a bullet that is fired pursuant to an intent to kill is not demonstrably different from the injury caused by a bullet which is fired as a concomitant of the intent required for the offense of Assault I. There are severe injuries in either case but they are the same kind, physically or metaphysically.”

The trial court disagreed with defendant’s argument:

“And at this point I am making a factual finding that the attempted murder was not merely an incidental violation of a separate statutory provision in the course of commission of a more serious crime.

“The crime of attempted murder, rather, was an indication of defendant’s willingness to commit more than one criminal offense. It indicated that the defendant not only had the willingness to create a serious physical injury to this victim, which he did accomplish, but that the defendant also had an intent to kill this victim, which he failed to realize.

“Further, the Court makes a finding that the crime of attempted murder created a risk of causing greater and qualitatively different loss, injury and harm to this victim. Having the intent to kill creates a risk of causing greater and qualitatively different loss, injury, or harm than merely having the intent to cause serious physical injury.

“The Court, therefore, is going to proceed to sentence to a consecutive sentence for the charge of attempted murder.”

The issue is whether the trial court’s imposition of consecutive sentences for attempted murder with a firearm and assault in the first degree was error under ORS 137.123(5). That statute provides:

“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 conduct.” (Emphasis added.)

We do not conduct a de novo review of the record in determining whether a consecutive sentence is authorized under ORS 137.123. State v. Racicot, 106 Or App 557, 561, 809 P2d 726 (1991). Rather, our standard of review is for errors of law appearing in the record or, in this case, for whether there is evidence to support the trial court’s findings. Subsection (5)(a) requires that the criminal conduct for which a consecutive sentence is contemplated be not merely an “incidental” violation of a separate statutory provision but “an indication of defendant’s willingness to commit more than one criminal offense.” The statute focuses on a defendant’s volition or the exercise of his or her will at the time of the commission of the crimes. Apparently, the trial court inferred from the fact that because defendant committed the crime of attempted murder, he also had the willingness to cause serious physical injury to the victim as well. The problem with the trial court’s finding is that it could not reasonably infer from the fact that defendant shot the victim in the head at close range that defendant intended to kill the victim and that he acted volitionally to cause the victim serious physical injury. If defendant intended to kill the victim by the single shot to the victim’s head, he could not have had the intent only to cause him serious physical injury. The statute requires more than an incidental violation of a separate statutory provision in the course of a commission of a more serious crime as a basis for a consecutive sentence. The firing of a single shot into the victim’s head by defendant could demonstrate a willingness to commit the crime of murder, but in the absence of findings of other facts that demonstrate a willingness to commit the additional offense of first-degree assault, it was error to impose consecutive sentences under ORS 137.123(5)(a).

Our opinions in State v. Rojas-Montalvo, 153 Or App 222, 957 P2d 163, rev den 327 Or 192 (1998), and in State v. Sumerlin, 139 Or App 579, 913 P2d 340 (1996), are not to the contrary. Both cases involve factual circumstances on which we relied to uphold consecutive sentences under ORS 137.123(5)(a). In Rojas-Montalvo, the defendant was sentenced to consecutive sentences for a conviction for unlawful possession of a controlled substance and for unlawful delivery of a controlled substance. The defendant argued that his possession of controlled substances was incidental to his constructive delivery of controlled substances. We observed that, in addition to the large quantities of cocaine in the defendant’s possession, there were a small scale, a box of baggies, a pager, and some small plastic bindles containing cocaine. Those facts demonstrated that the defendant had a willingness to commit the crime of delivery of cocaine in addition to the crime of mere possession of cocaine.

In Sumerlin, the defendant was convicted of both reckless driving and driving under the influence of intoxicants. The trial court sentenced him to consecutive sentences. On appeal, he challenged the consecutive nature of the sentences. We affirmed, pointing to the fact that “[b]y speeding while driving drunk, defendant showed a willingness to commit both [offenses].” Sumerlin, 139 Or App at 589. In both Rojas-Montalvo and Sumerlin, there were, unlike here, discrete facts that supported an inference that the defendants were willing to commit more than one crime.

Regarding its ruling under ORS 137.123(5)(b), the trial court here reasoned that “[h]aving the intent to kill creates a risk of causing greater and qualitatively different loss, injury, or harm than merely having the intent to cause serious physical injury.” The court’s reasoning assumes that defendant had the intent to cause serious physical injury, as well as the intent to kill the victim. Again, the trial court made no findings that support such an inference. Apparently, the only fact relied on by the trial court is the fact that defendant shot the victim in the head at close range with a gun. In the absence of a finding that reasonably leads to the inference that defendant intended to cause serious physical injury in addition to killing the victim, the trial court’s imposition of consecutive sentences was error under subsection (b).¹

Sentence vacated and remanded for resentencing; otherwise affirmed.

1 We express no opinion on whether the record before the trial court will permit it to impose consecutive sentences under ORS 137.123(5Xb) in the event that it makes adequate findings. Moreover, we express no opinion on which conviction is the more serious offense for purposes of the statute. Those questions are left to the trial court on remand. We hold only that the trial court’s present finding is insufficient to meet the requirements of the statute. Finally, to the extent that the dissent may believe that the statutory tests for merger of convictions and imposition of consecutive sentences are identical and that the trial court is bound under ORS 137.123(5) by the jury’s determination that defendant committed two crimes, we disagree. The merger of convictions for purposes of sentencing is governed by ORS 161.067. Under that statute, multiple convictions arise when the same criminal conduct violates two or more statutory provisions. The question under that statute is whether each statutory provision requires proof of an element that the others do not. In contrast, ORS 137.123(5) focuses on the defendant’s willingness to commit more than one offense to determine whether one offense is incidental to the other or whether the risk of qualitatively different harm to the victim occurred. The requirements of ORS 137.123(5) will not necessarily be met in every case where more than one statute has been violated and ORS 161.067(1) is applicable. This case is such an example. Defendant is guilty of attempted murder because he attempted to kill the victim and guilty of assault in the first degree because his attempt to kill the victim resulted in serious physical injury. However, if his only willingness was to kill the victim, ORS 137.12315) would preclude consecutive sentences despite the multiple convictions for the same conduct.