State v. Witherspoon
250 Or. App. 316
Or. Ct. App.2012Background
- Defendant was convicted on Counts 1 (misdemeanor assault), 2 (menacing), and 4 (felony assault) arising from an extended nighttime domestic dispute involving M and their son C.
- At sentencing for Count 4, the state proposed counting Counts 1 and 2 as prior convictions to enhance Count 4’s criminal history score.
- The trial court found Count 4 separate from Counts 1 and 2 and set Count 4’s score to “D,” applying grid block 6-D for a 14-month sentence.
- The court later departed downward to probation (36 months) and then revoked probation, resulting in a 14-month prison term on Count 4 after revocation.
- The appellate court held Counts 2 and 4 were not separate criminal episodes for the purposes of the criminal history calculation and remanded for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Counts 1 and 2 may be used to calculate the criminal history for Count 4. | State argues Counts 1–2 are separate episodes and justify a higher score. | Defendant contends Counts 1–2 were part of the same episode; no separate scoring for Count 4. | Counts 2 and 4 not separate episodes; remand for resentencing. |
| Whether the record supports treating Count 4 as separate from Counts 2 for the history score. | State relies on continuous conduct after Counts 1–2. | Record shows continuous conduct but not a single objective; issue of double jeopardy. | Record does not support separation; remand. |
| Whether the proper test for single criminal episode under ORS 131.505(4) was applied. | Norman/Bucholz framework allows using earlier convictions for later sentences if separate episodes. | A single objective analysis should prevent separate sentencing. | Majority’s test applied; remanded for resentencing. |
| Whether Counts 1–2 and Count 4 arose from the same or separate episodes under Kautz/Boyd. | Counts 2–4 shared a criminal objective and continuous conduct. | Objectives and continuity do not yield a single episode; Count 4 separate. | Counts 2–4 not separate; remand. |
Key Cases Cited
- State v. Potter, 236 Or App 74 (Or App 2010) (test for same criminal episode under ORS 131.505(4))
- State v. Bucholz, 317 Or 309 (Or 1993) (multiple convictions in one proceeding may affect history score)
- State v. Norman, 216 Or App 475 (Or App 2007) (allocation of criminal history when multiple convictions arise from earlier episode)
- State v. Kautz, 179 Or App 458 (Or App 2002) (whether burglary and robbery are same episode when separate objectives exist)
- State v. Boyd, 271 Or 558 (Or 1975) (concepts of same act/transaction and single criminal objective)
- Brown, 262 Or 442 (Or 1979) (concept of same act or transaction for multiple offenses)