Lead Opinion
Petitioner contends that the post-conviction court erred because first-degree robbery is a lesser-included offense of attempted aggravated felony murder such that the former merges into the latter. In contending otherwise, the superintendent asserts that the trial court correctly granted summary judgment because State v. Barrett ,
Petitioner's argument fails because his robbery conviction was not an element of his attempted aggravated murder conviction. See Barrett ,
Accordingly, we agree with the post-conviction court that relief was not warranted, because petitioner's foundational premise-that the sentencing court was required to merge petitioner's convictions-is incorrect as a matter of law. It follows that the trial court did not err in entering summary judgment in favor of the superintendent.
Affirmed.
Notes
We have understood Barrett to have implicitly overruled the Supreme Court's earlier holding in State v. Tucker ,
Although petitioner relies on more recent decisions of this court such as State v. Tate ,
Dissenting Opinion
Dissenting Opinion
The majority understandably adheres to State v. Barrett ,
I. ELEMENTS OF AGGRAVATED FELONY MURDER
ORS 161.067, governing merger of offenses, provides, in pertinent part:
"(1) 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."
(Emphasis added.) The first sticking point in this case lies in determining the elements of the primary offense for which petitioner was convicted, attempted aggravated felony murder. ORS 163.095(2)(d). The parties have different conceptions of those elements. Petitioner contends that the elements of the underlying felony of which he was convicted-first-degree robbery-are elements of his attempted aggravated felony murder conviction, whereas
The question poses an issue of statutory interpretation, viewed in the context of the broader statutory scheme for the crime of murder. State v. Gaines ,
Under the described statutory scheme, there is a concomitant relationship between ordinary murder, ORS 163.115, and aggravated murder, ORS 163.095, and, as relevant here, between felony murder, ORS 163.115(1)(b) and aggravated felony murder, ORS 163.095(2)(d). "[A]ny of the forms of murder under ORS 163.115 -intentional murder, felony murder, or murder by abuse-can become aggravated murder when the circumstances of the murder include one or more of the specified additional elements set out in ORS 163.095." Ventris ,
With that foundation in mind, I turn to Barrett . In that case, the defendant was charged with multiple counts of aggravated murder, including one count of aggravated felony murder, ORS 163.095(2)(d), based on the intentional killing of the victim during the commission of a robbery.
id="p439" href="#p439" data-label="439" data-citation-index="1" class="page-label">*439
id="p979" href="#p979" data-label="979" data-citation-index="1" class="page-label">*979
Although the issue of whether the defendant could be separately sentenced for both the underlying felony and aggravated felony murder was not presented in Barrett , the court nevertheless opined on that issue. The court recognized that the murder in that case was committed in the course of committing one of the felonies listed under ORS 163.115 (1)(b), the felony murder statute, and, thus, ORS 163.095 (2)(d) applied.
"Under the foregoing analysis, a separate 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 and ORS 163.095. Moreover, in 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 addressseparate legislative concerns. Accordingly, for purposes of former ORS 161.062(1), we do not view robbery as a lesser-included offense to the aggravated-murder charge."
In my view, only one of the court's statements in footnote 4 was clearly correct: Robbery and aggravated murder are set out in two different statutory provisions. The court's conclusion that aggravating circumstances are not separate elements for purposes of former ORS 161.062(1), but, rather, alternative ways of proving the single element of aggravation, is more debatable,
Aggravated felony murder means "murder as defined in ORS 163.115," the ordinary murder statute and its subcategories, including felony murder, "which is committed under, or accompanied by, any of the following circumstances," known as aggravating circumstances. ORS 163.095. One such aggravating circumstance is set out in ORS 163.095(2)(d), which applies where a defendant "personally and intentionally committed the homicide under the circumstances set forth in ORS 163.115(1)(b)," the felony murder statute. Taken together, those provisions establish that, to convict a defendant of aggravated felony murder under ORS 163.095(2)(d), the state must prove that the defendant
Even if, as the court in Barrett stated, various aggravating circumstances are aspects of a single element of aggravation, the matter is one of substance, not semantics: To prove aggravated felony murder, the state must prove the elements of felony murder, as set out in ORS 163.115 (1)(b), which include the elements of the underlying felony, in addition to the aggravating circumstance. It follows that the underlying felony is an element
Barrett aside, Supreme Court case law overwhelmingly supports that view. In State v. Farrar ,
"In State v. Reynolds ,, 539, 289 Or. 533 (1980), this court recognized that ORS 163.095(2)(d) does not eliminate the felony-murder elements and thereby make every murder that is committed personally and intentionally an aggravated murder. Rather, ORS 163.095 (2)(d) requires proof of the elements of felony murder and that defendant personally and intentionally committed the murder. " 614 P.2d 1158
(Emphases added.); Reynolds ,
Significantly, even after Barrett , the Supreme Court has held that ORS 163.095(2)(d)"consists of felony murder with the additional aggravating circumstance of having been committed personally and intentionally," and has recognized that " ORS 163.095(2)(d)specifically mentions and incorporates the definition of felony murder ." Ventris ,
In short, Barrett is an outlier in opining that felony murder is not an element-and therefore not a lesser-included offense-of aggravated felony murder. Unfortunately, that intimation in Barrett has cast doubt on longstanding authority that an underlying felony is a lesser-included offense of aggravated felony murder that merges with the latter. Compare Tucker ,
II. DOES "EACH PROVISION" THAT DEFENDANT VIOLATED "REQUIRE PROOF OF AN ELEMENT THAT THE OTHER DOES NOT"?
Apart from Barrett , the parties also dispute whether (1) all the elements of completed first-degree robbery are included in the offense of attempted aggravated felony murder; and (2) merger is precluded because all the elements of attempted aggravated murder are not included in first-degree robbery. The linchpin of their disagreement involves the meaning of the phrase "each provision requires proof of an element that the others do not" in ORS 161.067(1).
Again, ORS 161.067(1) provides:
"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."5
As suggested above, the conventional way of describing merger under ORS 161.067(1) has used the term "lesser-included offense." In Tucker , the Supreme Court noted that "those conditions [requiring separate punishable offenses under ORS 161.067 ] are not met where one offense charged truly is a lesser included offense of another offense charged, that is, when the former has no elements not also present in the latter, even though the latter has additional elements not present in the former."
Importantly, in those cases the court confirmed that additional elements in the primary offense do not affect the merger analysis. In particular, in holding that the crime of
Insofar as his current crimes of conviction are concerned, petitioner asserts that first-degree robbery is a lesser-included offense of attempted aggravated felony murder. Apart from its unavailing reliance on Barrett , in contending otherwise, the state asserts that a completed underlying felony does not merge with either attempted aggravated felony murder or aggravated felony murder because the latter offense does not require proof that the underlying felony was completed.
In support of that argument, the superintendent relies on several decisions of this court, including State v. Dickerson ,
The superintendent remonstrates that
"the court [in Walton ] overlooked the distinction between cases in which the charging instruments required proof that the underlying felonies were completed and cases in which they did not. See State v. Alvarez ,, 171, 240 Or. App. 167 (2010), 246 P.3d 26 [ 350 Or. 480 ] (2011) (court 'will look to the indictment to determine which form [alternative form of crime] is charged')." 256 P.3d 1070
That argument, however, rests on a fundamental misunderstanding of this court's decision in Alvarez . In that case, the court acknowledged the general rule, that, in determining whether offenses merge under ORS 161.067, only the statutory elements of each offense are compared, not the underlying factual circumstances recited in the indictment.
"when a statute contains alternative forms of a single crime (as, for example, unlawful use of a weapon, which can be committed either by (1) carrying or possessing a dangerous weapon or by (2) attempting to use one), we will look to the indictment to determine which form is charged, and weuse the elements of the charged version in the merger analysis."
The superintendent further contends that, because defendant's primary offense was attempted aggravated felony murder-meaning that defendant "intentionally engage[d] in conduct which constitute[d] a substantial step toward commission of" aggravated felony murder, ORS 161.405(1) -it did not require proof that defendant committed the underlying felony. That argument, however, conflates the issue whether an aggravated felony murder was attempted or completed, with the issue whether the underlying felony was attempted or completed. Again, aggravated felony murder consists of felony murder, as defined by ORS 163.115(1)(b), and personal and intentional commission of the homicide. To commit felony murder, an offender must "cause[ ] the death of a person." ORS 163.115(1)(b). To commit attempted felony murder, the offender therefore must attempt to cause the death of a person, not attempt to commit an underlying felony offense. As I see it, whether the murder was attempted or completed has no bearing on whether the underlying felony was attempted or completed, and vice versa .
Under the general rule, which requires comparison of the statutory elements of each offense, the question is whether first-degree robbery "has no elements not also present in [attempted aggravated murder], even though the latter has additional elements not present in the former." Tucker ,
"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 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. "
(Emphases added.) In short, first-degree robbery requires proof of all the elements set out in ORS 164.415. Likewise, attempted aggravated felony murder requires such proof because it includes the statutory element of felony murder, ORS 163.115(1)(b), which is defined to include "the following crimes," among which is "[r]obbery in the first degree as defined in ORS 164.415."
ORS 161.067(1) expressly provides that, to preclude merger, each statutory provision must require proof
One perplexing question remains: If Wilson only considered the statutory elements of the completed underlying felonies and attempted aggravated felony murder, how could the court in that case conclude that the offenses did not merge? Beyond its reliance on Barrett , in Wilson , the court held that ORS 161.067(1) precluded merger of kidnapping and assault offenses into associated attempted aggravated felony murder offenses, because the former offenses "require proof of the completed crimes of kidnapping and assault" whereas "attempted aggravated murder, under any theory, does not require such proof." Id. at 236,
It follows that, Wilson notwithstanding, the sentencing court in petitioner's criminal case should have merged petitioner's conviction for the lesser included underlying felony, first-degree robbery, with his conviction for the primary offense, attempted aggravated felony murder. Insofar as its grant of summary judgment to the superintendent was based on a contrary conclusion, in my view the post-conviction court erred.
For the foregoing reasons, I respectfully dissent.
As the court explained in Barrett ,
"[a]fter the Court of Appeals issued its decision in this case, the legislature repealed ORS 161.062. Or. Laws 1999, ch. 136, § 1. The first sentence of former ORS 161.062(1), which is at issue in this case, appears in identical form in ORS 161.067(1). Both former ORS 161.062 and ORS 161.067 became law in 1985. As this court explained in State v. Crotsley ,, 276 n. 3, 308 Or. 272 (1989), both statutes began as identically worded proposals which, in effect, were enacted twice, one in an amended legislative version, former ORS 161.062, and, later, one in an unamended initiative version, ORS 161.067. ORS 161.067 remains in effect. Throughout this opinion, we refer to former ORS 161.062." 779 P.2d 600
Id . at 29 n. 1,
See State v. Pipkin ,
In Reynolds , the court examined the historical development of felony murder and aggravated felony murder under the Criminal Code:
"Felony murder under the 1971 Criminal Code remained unchanged until the enactment in 1977 of the aggravated murder statute (ORS 163.095(2)(d). Or. Laws 1977, ch. 370, § 1. Under the 1971 Criminal Code, all participants in a felony were culpable for felony murder regardless of who may have caused the death. For example, if two armed men rob a store and one robber kills the store clerk, then under the 1971 Criminal Code and ORS 163.115, both robbers would be guilty of the felony murder. However, ORS 163.095(2)(d), enacted in 1977, now differentiates between the robber who personally committed the homicide and the robber who merely participated in the felony. ORS 163.095(2)(d) enhances the penalty for the participant who personally committed the homicide by requiring 20 years' imprisonment before parole may be considered."
As discussed, the issue on review in Barrett was whether "a sentencing court may impose multiple life sentences on [the] defendant for the aggravated murder of one victim." Barrett ,
It is undisputed that the same conduct formed the basis for petitioner's attempted aggravated murder and first-degree robbery convictions and that that conduct violated two different statutory provisions.
Notably, the superintendent's position conflicts with the state's position in another appeal recently briefed in this court:
"[I]t is well established that, as a general rule, when a defendant * * * is charged with aggravated felony murder under ORS 163.095(2)(d) (or felony murder under ORS 163.115(1)(b) ) and is also charged in a stand-alone count with the same felony offense that is alleged as the basis for the felony-murder charge, and he is found guilty on both counts, the guilty verdict on the felony count must be merged-as a matter of law under ORS 161.067(1) -into the conviction on the felony-murder charge. See, e.g. , State v. Ventris ,, 337 Or. 283 (2004) (separate conviction for burglary properly merged into conviction for felony murder based on burglary); [State v. ] Lopez-Delgado , [ 96 P.3d 815 , 756, 223 Or. App. 752 (2008) ] (same). That is, in the usual case , a guilty verdict on the stand-alone charge of first-degree burglary must be merged into a conviction on a charge of felony murder that alleged that same burglary offense as the basis for the charge and, similarly, a guilty verdict on a stand-alone charge of robbery must be merged into a conviction on a charge of felony murder that alleged that same robbery offense as the basis for the charge (which might be labeled vertical merger)." 196 P.3d 104
Respondent's Combined Answering Brief and Cross-Opening Brief at 14-15, State v. Surls (CA A162003) (Emphasis in original.). Under that formulation, I do not see how petitioner's convictions here would fail to merge.
Indeed, in both Barrett and Wilson , the courts did not look beyond the statutory elements of the offenses in conducting their merger analyses.
ORS 164.395 provides:
"(1) A person commits the crime of robbery in the third degree if in the course of committing or attempting to commit theft or unauthorized use of a vehicle as defined in ORS 164.135 the person uses or threatens the immediate use of physical force upon another person with the intent of:
"(a) Preventing or overcoming resistance to the taking of the property or to retention thereof immediately after the taking; or
"(b) Compelling the owner of such property or another person to deliver the property or to engage in other conduct which might aid in the commission of the theft or unauthorized use of a vehicle.
"(2) Robbery in the third degree is a Class C felony."
Ironically, if petitioner had been convicted of attempted robbery, under Wilson 's conception of merger, that conviction arguably would merge into a companion conviction for attempted aggravated felony murder because the latter offense does require, at the least, an attempt to commit a predicate qualifying felony. That reasoning leads to an unlikely effect: Two offenses that, by statute, are both qualifying predicate offenses for attempted felony murder; where one would merge with the primary offense, but the other would not. Even in Barrett , the court did not go as far as to preclude merger of an underlying felony with aggravated felony murder on the ground that the latter, theoretically , could be proved by establishing an attempted, rather than a completed felony.