428 P.3d 976
Or. Ct. App.2018Background
- Petitioner convicted of attempted aggravated murder under ORS 163.095(2)(d) (aggravated felony murder, attempted) and of first-degree robbery with a firearm (ORS 164.415). Same conduct formed basis for both convictions.
- Petitioner filed a post-conviction petition claiming counsel was ineffective for failing to seek merger of the robbery count into the (attempted) aggravated murder count.
- The post-conviction court granted summary judgment for the superintendent, concluding the offenses do not merge as a matter of law and petitioner suffered no prejudice.
- Majority affirms, holding robbery is not an element of (attempted) aggravated felony murder and completed robbery does not merge into attempted aggravated murder.
- Dissent argues Barrett and Wilson were wrongly decided: the underlying felony is an element of aggravated felony murder under ORS 163.095(2)(d) and, under ORS 161.067(1), robbery should merge into aggravated felony murder (or attempted aggravated murder).
Issues
| Issue | Petitioner's Argument | Superintendent's Argument | Held |
|---|---|---|---|
| Whether first-degree robbery merges into attempted aggravated felony murder | Robbery is a lesser-included offense of aggravated felony murder and should merge | Under Barrett, the underlying felony is not an element of aggravated felony murder; completed robbery does not merge into attempted aggravated murder | Majority: No merger; robbery not an element and completed robbery does not merge into attempted aggravated murder |
| Whether failure to object to nonmerged sentences prejudiced petitioner | Counsel should have objected; merger would reduce punishments | No prejudice because convictions correctly did not merge as a matter of law | Majority: No prejudice; summary judgment for superintendent affirmed |
| Proper interpretation of ORS 161.067(1) (anti-merger statute) | ORS 161.067(1) mandates merger where one offense's elements are subsumed by the other | Barrett/Wilson approach: separate provisions require different elements so no merger | Dissent: ORS 161.067(1) requires element-by-element comparison; underlying felony elements are subsumed, so merger warranted (disagrees with majority) |
| Role of attempted vs completed predicate felony in merger analysis | Completed robbery's elements are included in aggravated felony murder, so merge should occur even if murder was attempted | Attempted aggravated murder need not require a completed underlying felony; courts may consider that attempted predicate could suffice, so completed felony need not merge | Majority: Completed underlying felony does not merge into attempted aggravated murder; dissent rejects that distinction |
Key Cases Cited
- State v. Barrett, 331 Or. 27 (dicta that underlying felony is not an element of aggravated felony murder)
- State v. Wilson, 216 Or. App. 226 (held underlying completed felonies did not merge into attempted aggravated murder)
- State v. Tucker, 315 Or. 321 (treated robbery as lesser-included of aggravated felony murder)
- State v. Ventris, 337 Or. 283 (explains relationship between ORS 163.115 and ORS 163.095; ORS 163.095(2)(d) incorporates felony murder)
- State v. Walton, 134 Or. App. 66 (held a felony conviction can merge into a felony-murder conviction predicated on attempt or completion)
- State v. Blake, 348 Or. 95 (explains ORS 161.067(1) merger analysis comparing statutory elements)