State v. Hardesty

Aug 28, 1984
C83-01-30043; CA A29048
Reporters:
,
Before:
Joseph

Lead Opinion

*593JOSEPH, C. J.

Defendant appeals from a conviction on two counts of robbery in the first degree and one count of rape in the first degree. He seeks modification of the sentences imposed. We remand for resentencing.

Defendant was originally charged in a six count indictment. After plea negotiations, he was found guilty on the three counts in a stipulated facts trial. The trial court sentenced him to 20 years for each conviction and imposed a mandatory minimum sentence of five years on each, pursuant to ORS 161.610. The court ordered both robbery sentences to be served concurrently but consecutive to the rape sentence. He would have to serve at least 10 years before being eligible for parole.

ORS 161.610(5) provides:

“(5) The minimum terms of imprisonment for felony convictions in which the court finds that the defendant used or threatened to use a firearm shall be as follows:
“(a) Except as provided in subsection (6) of this section, upon the first conviction for such felony, five years.
“(b) Upon conviction for such felony committed after punishment pursuant to paragraph (a) of this subsection, 10 years.
“(с) Upon conviction for such felony committed after imprisonment pursuant to paragraph (b) of this subsection, 30 years.” (Emphasis supplied.)

Defendant argues that the trial court erred in imposing multiple minimum sentences.1 He submits that the statute allows only one five-year minimum sentence when a defendant ‍​​​​​​‌​‌‌​​​​​​‌‌‌‌​‌​​​​‌​​‌​‌‌​‌‌​‌‌​​​​‌‌​​​‍is convicted of more than оne felony during the course of a “single criminal episode.”2 He argues that the statute should *594be so interpreted, even though it speaks in terms of felony convictions rather than criminal episоdes. He concedes that there is no legislative history to support his proposed reading of the statute.

Defendant does not argue that his convictions should have been “merged” for sentencing purposes, because this is not a “merger” case within the meaning of State v. Linthwaite, 295 Or 162, 665 P2d 863 (1983); State v. Cloutier, supra, n 2; or State v. Kessler, 65 Or App 380, 671 P2d 749 (1983), rev allowed 296 Or 638 (1984). The narrow issue is whether ORS 161.610 authorizes imposition of multiple minimum consecutive sentences on a defendant who is convicted of several felonies committed while using a firearm during the course of one criminal transaction.

A statute should be interpreted so that its application is consistent with the legislature’s intent. State v. Linthwaite, supra, 295 Or at 177. In construing ORS 161.610 we look first to the.plain meaning of its words. ORS 161.610(5) prescribes minimum terms of imprisonment for convictions of felonies in which the defendant has used a firearm. ORS 161.610(5)(a), under which defendant was sentenced, provides for a five-year minimum term of imprisonment “upon the first conviction for such felony * * *.” The legislature did not expressly limit the imposition of a minimum sentence to only one conviction when multiple convictions arise out of a single criminal transaction. As a pure matter of fact, defendant can be said to have been convicted simultaneously for three first offenses while armed, but we do not believe that the legislature intended “first conviction” to refer to multiple simultaneous convictions and to subject a defendant to an еnhanced sentence for each conviction. Unfortunately, the only thing the legislative history suggests is that the legislature never thought of a situation like this one. Nonethеless, we conclude that it is more consonant with the “use a gun, serve a minimum term” policy of the statute to limit the imposition of *595the enhanced punishment under ORS 161.610(5) (a) to the first sentence imposed in a multiрle offense situation.3

Remanded for resentencing.4

Notes

Defendant’s trial counsel urged the trial court to impose three concurrent 20-year sentences with three five-year minimums, which would have rеsulted in one five-year minimum term to be served before parole eligibility. On appeal the state does not argue that the issue now argued was not raised below.

ORS 131.505(4) provides:

“(4) ‘Criminal episode’ means continuous and uninterrupted conduct that establishes at least one offense and is so joined ‍​​​​​​‌​‌‌​​​​​​‌‌‌‌​‌​​​​‌​​‌​‌‌​‌‌​‌‌​​​​‌‌​​​‍in time, place and circumstancеs that such conduct is directed to the accomplishment of a single criminal objective.”

*594The term “criminal episode” has assumed a technical significance in “merger” cases, which we find unnecessary to discuss here. See State v. Cloutier, 286 Or 579, 595, 596 P2d 1278 (1979); State v. Clifton, 64 Or App 550, 669 P2d 353 (1983). To avoid further confusion we refer to defendant’s total criminal conduct as a criminal transaction.

The possible application of ORS 144.110 in this case is not before us.

The dissent apparently deals with a different statute, even though it cites ORS 161.610(5)(a). Otherwise, there is no accounting for its failure to discuss (let alone quote) the language “upon the first conviction for such felony * *



Dissenting Opinion

RICHARDSON, P. J.,

dissenting.

Defendant used a gun in the commission of two robberies and a rape. The court imposed consecutive five-year mandatory minimum terms of confinement on each charge pursuant to ORS 161.610(5). The majority holds that the trial court could lawfully impose only one minimum term for the series of сrimes. I disagree and therefore dissent.

Although lurking in the background of the majority’s reasoning there may be considerations of constitutional fairness and proportionality, there is no constitutional issue raised in this case. Resolution of the issue involves only a question of statutory construction. In approaching that task it is important to place the sentencing authority of the trial court in proper perspective.

As the majority observes, all three crimes were committed as рart of a single criminal transaction. Also, ‍​​​​​​‌​‌‌​​​​​​‌‌‌‌​‌​​​​‌​​‌​‌‌​‌‌​‌‌​​​​‌‌​​​‍as the majority correctly observes, the offenses are lawfully treated separately for sentencing, i.e., they are not “mergeable” under the theory of State v. Linthwaite, 295 Or 162, 665 P2d 863 (1983), and State v. Cloutier, 286 Or 579, 596 P2d 1278 (1979). Additionally, the court could lawfully order the underlying sentences to be served consecutively. The majority does not dispute these general sentencing propositions.

It is аlso important to understand the particular aspect of a sentence under ORS 161.610(5). In State v. Wedge, 293 Or 598, 652 P2d 773 (1982), the court held that whether a defendant used a gun in the commission of a felоny is an element of the crime for purposes of sentencing under ORS 161.610(5) and that the defendant was entitled to a jury determination of that element. The court said that, although ORS 161.610(5) is usually denominated an enhanced penalty statute, in effect it creates a new crime for which a minimum *596term is required. If the elements are properly еstablished for the purposes of ORS 161.610(5), the court is required to impose the minimum term for the crime, unless it finds mitigating circumstances under ORS 161.610(6). State v. Warner, 52 Or App 987, 630 P2d 385, rev den 291 Or 662 (1981).

Applying those general and specific principles tо the facts of this case, the court was required ‍​​​​​​‌​‌‌​​​​​​‌‌‌‌​‌​​​​‌​​‌​‌‌​‌‌​‌‌​​​​‌‌​​​‍to sentence defendant separately on each charge and to impose a minimum sentence on each charge.

The majority, after finding no specific guideline in the statute, concludes that separate minimum terms are not consonant with legislative pоlicy. The legislative policy the majority finds is expressed in the term “use a gun, serve a minimum term.” A more accurate rendition would be “commit a felony with a gun, serve a minimum рart of the sentence imposed for that crime.” The majority appears to conclude that if the legislature did not express a policy or think of a problem and offer a solution, the court is free to adopt a particular policy from an array of choices and mold the statute to fit that policy. Perhaps the majority’s choice is supportable as a legislative act but not as a judicial act.

I do not agree with the majority that the legislature may not have contemplated the situation where separate sentences are lawfully imposed for a series of felonies involving the use of a gun. ORS 161.610(4) provides in part:

“Notwithstanding the provisions of ORS 161.605 or 137.010(2), if the court finds beyond a reasonable doubt that the defendant used or threatened to use a firearm during the commission of the crime, it shall impose at least the minimum term of imprisonment аs provided in subsection (5) of this section. * * *” (Emphasis supplied.)

The minimum term becomes a required part of a sentence for a crime if the elements invoking ORS 161.610(4) are established. The statute expresses a legislative intent that, if a defendant commits a crime using a firеarm, he will have to serve a minimum term for that crime. The words of the statute control the situation here at issue. There is no need for a judicial foray into the thicket of legislative policy.

*597The trial court may order that the separate sentences including the required minimums be served concurrently. That is a matter of discretion. The majority makes it a matter of law.

ORS 161.610(5) (b) and (c) are not involved in this issue. Those subsections provide for an increased minimum term for felonies committed with a firearm subsequent to conviction and ‍​​​​​​‌​‌‌​​​​​​‌‌‌‌​‌​​​​‌​​‌​‌‌​‌‌​‌‌​​​​‌‌​​​‍punishment for a felony or felonies using a firearm. I agree with the majority that the appropriate minimum term for each felony in this series is five years. ORS 161.610(5)(a).

I would affirm the sentences imposed and therefore dissent.