PEDRO MARTINEZ, Pеtitioner on Review, v. Brad CAIN, Superintendent, Snake River Correctional Institution, Respondent on Review.
(CC CV160282) (CA A163992) (SC S066253)
Supreme Court of Oregon
February 21, 2020
366 Or 136 | 458 P3d 670
Argued and submitted May 7, 2019
Argued and submitted May 7, 2019; decision of Court of Appeals reversed, judgment of circuit court reversed, and case remanded to circuit court for further proceedings February 21, 2020
Petitioner had been convicted and given separate sentences for (among other things) first-degree robbery and attempted aggravated felony murder based on the predicate felony of first-degree robbery. He sought post-conviction relief, contending that his counsel had been constitutionally inadequate by failing to argue that those crimes should be merged. The post-conviction court granted summary judgment against petitioner, concluding that he had not been prejudiced by his counsel‘s failure to object, because as a matter of law the sentences would not merge. A majority of the Court of Appeals panel affirmed, with one judge dissenting. On review, the question was whether (if counsel had objected) petitioner‘s convictions should have been merged under
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
En Banc
On review from the Court of Appeals.*
Lindsey Burrows, O‘Connor Weber LLC, Portland, argued the cause and filed the briefs for petitioner on review.
Doug M. Petrina, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Erik M. Blumenthal, Portland, filed the brief for amicus curiae Oregon Justice Resource Center.
NELSON, J.
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
NELSON, J.
The
On review, the question before us is whether petitioner‘s convictions should have been merged under
I. FACTS
A. Underlying Criminal Conviction
The underlying historical facts are undisputed for our purposes, and we take them from the Court of Appeals’ opinion in petitioner‘s direct criminal appeal, State v. Martinez, 270 Or App 423, 348 P3d 285,
“[Petitiоner], who was ‘playing with’ a gun, asked the victim for his wallet. The victim refused. [Petitioner] then asked the victim to get out of his car, and the victim refused that request, too, saying ‘you ain‘t getting my wallet and you ain‘t getting my car.’ [Petitioner] said, ‘Well, then I‘m going to have to shoot you.’ As the victim tried to drive away, [petitioner] did just that, shooting the victim once in the arm. The victim testified that his car already was moving when [petitioner] fired; the victim believes that it is possible that the car bumped [petitioner‘s] hand, causing him to lose some control of the gun when he pulled the trigger. The victim drove the short distance to his home аnd called 9-1-1. He was transported to a hospital. A doctor who treated the victim testified that the bullet broke the victim‘s arm and fragments traveled into the victim‘s chest area, coming within an inch of multiple blood vessels. Had the bullet hit one of the major arteries, the victim probably would have died within 10 minutes if he had not received medical care.”
Petitioner was indicted on several counts, though the only counts relevant here charged petitioner with first-degree robbery and attempted aggravated felony murder. Before continuing, we offer a brief description of the crimes with which petitioner was charged.
We begin with felony murder. Briefly, a defendant commits felony murder when he or she either commits or attempts to commit one of a listed set of felonies (predicate felonies), and either the defendant or another participant in the crime causes the death of the victim. See
“(1) Except as provided in
ORS 163.118 and163.125 , criminal homicide constitutes murder:*****
“(b) When it is committed by a person, acting either alone or with one or more persons, who commits or attempts to commit any of the following crimes and in the course of and in furtherance of the crime the person is committing or attempting to commit, or during the immediate flight therefrom, the person, or another participant if there be any, causes the death of a person other than one of the participants:
*****
“(G) Robbery in the first degree as defined in
ORS 164.415 [.]”
As relevant to the superintendent‘s argument here, it is important to note that a defendant may commit felony murder even though the defendant did not complete the underlying felony. That is, the statute will apply if the
defendant only attempted to commit a predicate felony.
At the time petitioner committed his crimes, felony murder could become elevated to aggravated murder. That could occur when the defendant‘s conduct not only met the requirements for felony murder, but the defendant also personally and intentionally killed the victim. See
“As used in
ORS 163.105 and this section, ‘aggravated murder’ means murder as defined inORS 163.115 which is committed under, or accompanied by, any of the following circumstances:*****
“[(2)](d) Notwithstanding
ORS 163.115(1)(b) , the defendant personally and intentionally committed the homicide under the circumstances set forth inORS 163.115(1)(b) .”
Throughout this opinion, we will refer to that as “aggravated felony murder,”
As noted, the indictment against petitioner charged him with first-degree robbery and attempted aggravated felony murder. The attempted aggravated felony murder charge relied on the first-degree robbery charge, specifically alleging that petitioner had attempted, personally and intentionally, to kill the victim while in the course of committing, or attempting to commit, first-degree robbery.3
Petitioner was fоund guilty on both counts, and the trial court entered separate convictions for the first-degree robbery count and the attempted aggravated felony murder count.
Petitioner‘s trial counsel did not object or argue that the trial court should have merged the convictions under
“When the sаme conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.”
As noted, petitioner‘s trial counsel failed to argue that the requirements of the statute had not been satisfied and, therefore, that the first-degree robbery count should have been merged into the attempted aggravated murder count. If
In the absence of any objection, however, the trial court entered a judgment of conviction showing separate convictions for both first-degree robbery and attempted aggravated felony murder. The court imposed sentences on each of those counts, making 45 months of the first-degree robbery sentence run consecutive to the attempted aggravated murder sentence.4
Petitioner raised the merger issue in the Court of Appeals, but the court rejected that assignment of error as unpreserved. See Martinez, 270 Or App at 424. The court otherwise affirmed petitioner‘s convictions and sentences.
B. Post-Conviction Proceedings
Petitioner then sought post-conviction relief, alleging that his trial counsel had been
As noted,
In support, the superintendent also relied on a footnote in State v. Barrett, 331 Or 27, 10 P3d 901 (2000). Applying
identical to the merger statute at issue here5—this court stated in a footnote that the trial court could enter separate convictions for aggravated felony murder and the underlying predicate felonies:
“[A] sepаrate conviction could be entered on the robbery charge on remand. Robbery and aggravated murder clearly are set out in two different statutory provisions,
ORS 164.415 andORS 163.095 . Moreover, in light of our conclusion that the various aggravating circumstances are not ‘elements’ for purposes offormer ORS 161.062(1) but, rather, alternative ways of proving the element of aggravation, the statutory provisions penalizing robbery and aggravated murder each involve an element that the other does not and address separate legislative concerns. Accordingly, for purposes offormer ORS 161.062(1) , we do not view robbery as a lesser-included offense to the aggravated-murder charge.”
Id. at 37 n 4. Although Barrett did not depend on the distinction between a completed and attempted predicate felony, it stated, more broadly, that predicate felonies were not themselves elements of aggravated felony murder, but were “alternative ways of proving” a single element of aggravation.
In response to the superintendent‘s argument in the Court of Appeals, petitioner argued that the statement in Barrett was dictum. The correct rule, petitioner contended, was that articulated by this court in State v. Tucker, 315 Or 321, 845 P2d 904 (1993). In that case, the defendant had been convicted of (among other things) two counts of aggravated felony murder against each of the two victims, one based on the underlying felony of robbery, the other based on the underlying felony of burglary. See id. at 323-24; id. at 323 n 1. The trial court had merged the aggravated felony murder counts together, but it had not merged the underlying robbery and burglary counts into those aggravated felony murder counts. Id. at 324-25. This court, applying
331. Therefore, this court held, the trial court had erred in not merging those counts. Id.
The superintendent responded that Tucker had been overruled by Barrett, and the рost-conviction court ultimately agreed. It granted the superintendent summary judgment.
Petitioner appealed to the Court of Appeals, which affirmed in a split decision. Martinez, 293 Or App 434. As
Senior Judge Brewer dissented, concluding that the majority was incorrect in its merger analysis. He argued that the Barrett footnote was inaccurate and should be reconsidered. Id. at 440-43. He also would have concluded that
Petitioner sought review, which we allowed.
II. DISCUSSION
A. Requirements of ORS 161.067(1)
As noted, the issue here involves whether—assuming that petitioner‘s trial counsel had invoked
“When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.”
Textually,
The only statutory requirement at issue here is the third: whether each separate statutory provision requires proof of an element that the others do not. It is not enough to show that one offense has an element that the other does not; the other offense also must have an element that the first does not. See State v. Blake, 348 Or 95, 99, 228 P3d 560 (2010) (“if one offense contains X elements, and another offense contains X + 1 elements, the former offense does not contain an element that is not also found in the latter offense“). In short, the requirement is met, and the offenses will not merge, only if each statutory offense at issue has a unique element not in common with the other offenses.
The primary point of contention in this case turns on felony murder and its relationship to the predicate crimes for felony murder. Accordingly, we begin there.
Felony murder was defined in
First-degree robbery is one of the predicate offenses of felony murder, whether it is completed or only attempted.
In this case, the superintendent does not dispute that both the attempted aggravated felony murder count and the first-degree robbery count pleaded the same factual robbery. The robbery alleged in the second count of the
indictment was the same robbery that served as a predicate felony for the attempted aggravated felony murder charge in the first count.
We emphasize that here, because the outcome would be different were that not true. If a defendant had been charged with one crime (e.g., burglary), but also charged with felony murder based on a different predicate felony (e.g., first-degree kidnapping, see
Here, the state indicted petitioner for robbery and for attempted aggravated felony murder based on the same robbery. Both crimes were committed against the same victim and in the same criminal episode. That single robbery must be either completed or attempted for both counts. It could not simultaneously be both completed and only attempted.
Because the same factual robbery was involved, the state‘s proof of (attempted aggravated) felony murder based on that first-degree robbery—whether completed or attempted—necessarily meant that the state would have proved every element of first-degree robbery, whether completed or attempted. As we just noted, proof of felony murder based on a completed first-degree robbery definitionally would require proof of every element of a completed robbery, while proof of felony murder based on an attempted first-degree robbery definitionally would require proof of every element of an attempted robbery. Regardless whether the robbery was completed or attempted, there is no element of that robbery count that would not have been proved in the felony murder count. Thus, whether the robbery was completed or attempted, all the elements of robbery were necessarily included within the attempted aggravated fеlony murder charge.
Accordingly, we agree with petitioner and reject superintendent‘s argument that the robbery count against him required proof of an element that the attempted aggravated felony murder count against him did not.
C. Applicability of This Court‘s Decision in Barrett
The Court of Appeals also reliеd on this court‘s decision in Barrett. See 293 Or App at 435. Barrett is not based on the distinction argued for by the superintendent (that the predicate felony required the extra element of completion, while felony murder required only the element of attempt to commit the predicate felony). Instead, Barrett held that aggravated murder was murder plus a single element of “aggravation,” adding that the predicate felonies of felony murder were merely alternative methods of proving that element of aggravation. Barrett thus indicated that a predicate felony was not itself an element of aggravated felony murder. If Barrett wаs correct on that point, then the two crimes would not overlap in their elements, and petitioner‘s predicate felony of first-degree robbery would not merge into the guilty verdict for attempted aggravated felony murder. We turn, then, to Barrett.
The main part of Barrett concerned whether the trial court should have merged the guilty verdicts on three counts of aggravated murder, when the defendant had only killed a single victim. See 331 Or at 29. Interpreting the nearly identical merger statute,
“The aggravating factors constitute no more than different theories under which murder becomes subject to the enhanced penalties for aggravated murder. That defendant‘s conduct in intentionally murdering the victim in
this case was ‘aggravated’ by ‘any,’ i.e., one or more, act surrounding that conduct does not convert that conduct into more than one sеparately punishable offense.”
In so concluding, this court had asserted in a footnote that the predicate felonies for felony murder were also alternative ways to prove the single element of “aggravation“:
“One of the aggravating circumstances listed in
ORS 163.095 is that the murder was committed during the course of one of 12 felonies listed inORS 163.115(1)(b) .”
331 Or at 34 n 2. Relying on that, this court later shifted from the issue of merger of the three counts of aggravated murder and turned instead to the different issue of whether the predicate felony should merge into the aggravated felony murder count. The court stated in dictum that the trial court, on remand, should not merge the predicate felony of first-degree robbery into the aggravated felony murder count based on that same robbery:
“[I]n light of our conclusion that the various aggravating circumstances are not ‘elements’ for purposes of
former ORS 161.062(1) but, rather, alternative ways of proving the element of aggravation, the statutory provisions penalizing robbery and aggravated murder each involve an element that the other does not and address separate legislative concerns.”
We need not revisit Barrett as a whole to conclude that it was incorrect in its dictum that the predicate felony would not merge into aggravated felony murder. The erroneous premise was the assertion in its second footnote that the predicate felonies of aggravated felony murder were alternative ways to prove “aggravation.” The alternative ways to prove “aggravation” were listed in
factor that elevated felony murder into aggravated murder was that the defendant had “personally and intentionally committed the homicide.”
For those reasons, we disavow footnotes two and four of Barrett. The predicate felonies of felony murder are not alternative ways to prove “aggravation” for aggravated felony murder. Accordingly, Barrett does not support holding that
III. CONCLUSION
For the reasons discussed, we conclude that
We emphasize again that our holding today only addresses the legal question of how
The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.
Notes
“COUNT 1
“ATTEMPTED AGGRAVATED MURDER WITH A FIREARM
“The said [petitioner], on or about June 11, 2012, in the County of Multnomah, State of Oregon, did unlawfully and intentionally commit and attempt to commit the crime of Robbery in the First Degree and in the course of and in the furtherance of the crime that [petitioner] was committing and attempting to commit, [petitioner] personally and intentionally attempted to cause the death of [the victim], a human being who was not a participant in the crime, and during the commission of this felony, the [petitioner] used and threatened the use of a firearm, contrary to the stаtutes in such cases made and provided and against the peace and dignity of the State of Oregon[.]
“COUNT 2
“ROBBERY IN THE FIRST DEGREE WITH A FIREARM
“The said [petitioner], on or about June 11, 2012, in the County of Multnomah, State of Oregon, did unlawfully and knowingly, while in the course of committing and attempting to commit theft, with the intent of preventing and overcoming resistance to [petitioner‘s] taking of property and retention of the property immediately after the taking, and being armed with a deadly weapon, use and threaten the immediate use of physical force upon [the victim], contrary to the statutes in such cases made аnd provided and against the peace and dignity of the State of Oregon[.]
“The state further alleges that during the commission of this felony the [petitioner] used and threatened the use of a firearm.”