State v. Burns, 259 Or. App. 410

Defendant, a single father, was convicted by a jury of two counts of first-degree criminal mistreatment for severely spanking two children (K and S) in the same room; both victims sustained bruising. A third child was also spanked but not charged.
At sentencing the court sentenced Count 1 first, then used the Count 1 conviction as criminal history when calculating the grid block for Count 2, treating the two spankings as separate "criminal episodes."
Using that criminal-history calculation, the court labeled Count 2 as a higher-grid offender (7D) but imposed a downward dispositional departure to probation equal to the sentence on Count 1.
Defendant appealed, arguing the two spankings were one criminal episode so Count 1 could not be counted in his criminal history for Count 2; the State argued the appeal was not justiciable (ripeness) and, on the merits, the acts were separate episodes.
The court considered (1) whether the challenge was ripe now given potential future revocation exposure, and (2) whether the two spankings shared a single criminal objective under ORS 131.505(4) (the "criminal episode" test used for criminal-history calculation).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Ripeness / Justiciability of appeal	State: challenge depends on hypothetical future revocation and thus is not ripe	Defendant: appeal is the only opportunity to challenge criminal-history calculation now; revocation exposure makes the ruling immediately consequential	Court: appeal is justiciable — "now or never" posture and binding effect on future revocation make review proper
Whether two spankings are one criminal episode for criminal-history calculation	State: separate, deliberate acts against separate victims with interruption show separate criminal objectives; trial court correctly treated them as separate episodes	Defendant: the acts were continuous, in quick succession, same place and same overarching objective (to punish children for the mess), so they form one criminal episode and cannot be counted as prior history	Court: erred — the two spankings arose from a single criminal episode under ORS 131.505(4); remanded for resentencing without using Count 1 as criminal history for Count 2

State v. Cloutier, 286 Or. 579 (explains focus on single criminal objective, not mere coincidence of time/place)
State v. Bucholz, 317 Or. 309 (criminal-history rule context; convictions from same proceeding not counted unless separate criminal episodes)
State v. Witherspoon, 250 Or. App. 316 (treated prolonged domestic abuse spanning hours as single criminal episode)
State v. Kessler, 297 Or. 460 (multiple victims; discussion whether separate intermediate objectives justify separate episodes/sentences)
State v. Linthwaite, 295 Or. 162 (multiple victims from single conduct and discussion of sentencing consequences)
State v. Anderson, 243 Or. App. 222 (criminal-history calculation binding in later revocation proceedings)