Martinez v. Cain
366 Or. 136
Or.2020Background
- Martinez was convicted of first-degree robbery and attempted aggravated felony murder based on the same robbery; trial counsel did not seek merger of the robbery count into the felony-murder count.
- The indictment alleged attempted aggravated felony murder (personally and intentionally attempted to kill) in the course of committing or attempting first-degree robbery; both counts rested on the same factual robbery.
- Trial court entered separate convictions and consecutive sentencing; Martinez raised merger on direct appeal but the claim was deemed unpreserved.
- In post-conviction proceedings Martinez alleged ineffective assistance for failing to object to non‑merger; the superintendent moved for summary judgment asserting the offenses would not merge as a matter of law.
- The Court of Appeals affirmed (relying on State v. Barrett dictum that predicate felonies are alternative ways to show aggravation); the Oregon Supreme Court reversed, holding that felony murder incorporates the elements of the predicate felony and that, when both counts rest on the same factual robbery, merger was required under ORS 161.067(1). The case was remanded for further proceedings on prejudice and ineffective-assistance claims.
Issues
| Issue | Plaintiff's Argument (Martinez) | Defendant's Argument (Cain / Superintendent) | Held |
|---|---|---|---|
| Whether ORS 161.067(1) required merger of first‑degree robbery into attempted aggravated felony murder when both charges rest on the same factual robbery | Felony murder expressly incorporates the predicate felony’s elements (completed or attempted); because the same robbery was the predicate, robbery adds no element beyond felony murder, so merger required | Aggravated felony murder can be based on an attempt while robbery requires completion; Barrett dictum treats predicate felonies as alternative ways to prove aggravation, so each offense has an element the other lacks and they need not merge | Reversed Barrett dictum on this point; held that felony murder definitionally includes the predicate felony’s elements and, where both counts prosecute the same factual robbery, the robbery count adds no element not included in the felony‑murder count, so merger was required under ORS 161.067(1) |
Key Cases Cited
- State v. Barrett, 331 Or. 27, 10 P.3d 901 (Or. 2000) (court had suggested in dictum that predicate felonies were alternative ways to prove aggravation; Supreme Court here disavows those footnotes)
- State v. Tucker, 315 Or. 321, 845 P.2d 904 (Or. 1993) (held robberies/burglaries were lesser‑included of aggravated felony murder in prior context)
- State v. Crotsley, 308 Or. 272, 779 P.2d 600 (Or. 1989) (explains the three requirements for separate punishable offenses under the merger statute)
- State v. Blake, 348 Or. 95, 228 P.3d 560 (Or. 2010) (clarifies element‑comparison rule under the merger statute)