Defendant was found guilty on multiple counts of animal abuse, based on his failure to provide minimally adequate care for his herd of alpacas. Those counts included a felony count (Count 1) and a misdemeanor count (Count 6) of first-degree animal abuse, both of which involved the failure to provide care for the same animal. On appeal, defendant argues, among other contentions, that the trial court erred by entering separate convictions on Counts 1 and 6 rather than merging the guilty verdicts for those counts into a single conviction.
The state concedes that the trial court erred in failing to merge the guilty verdicts on Counts 1 and 6, and it further concedes that, under our existing case law—specifically, State v. Skaggs,
As described above, defendant’s merger argument concerns two counts of first-degree animal abuse under ORS 167.330. Under that statute, first-degree animal abuse is a misdemeanor, unless certain aggravating factors are present, in which case it becomes a Class C felony. ORS 167.330(2), (3). One of those aggravating factors is that the offense was part of an episode involving 10 or more animals. ORS 167.330(3). In addition, if more than 40 animals were neglected, the crime category classification for the offense is increased for sentencing purposes. ORS 167.330(4).
In this case, the state separately alleged a felony (Count 1) and a misdemeanor (Count 6) under ORS 167.330 based on defendant’s conduct toward one of his alpacas, an animal identified as number “5.”
The disputed issue on appeal is the consequence of that merger error. Just over a year ago, in Skaggs, we held that an error in failing to merge guilty verdicts is one that requires resentencing under ORS 138.222(5)(b). In Skaggs, as in this case, the state conceded that the trial court erred by failing to merge two guilty verdicts, but it argued that a remand for resentencing was unnecessary, relying on ORS 138.222(5)(a). We described that argument as follows:
“[T]he state urges us to reverse and remand for entry of a corrected judgment that merges defendant’s convictions rather than to remand for resentencing. We should do so, the state asserts, because defendant received concurrent sentences on the two convictions and nothing in the judgment or record ‘suggests that merger of the two convictions would have any effect at all on the overall disposition’ of the case. The state further argues that, because the error can be fixed by the trial court’s entry of a corrected judgment, the error in question is not one that ‘requires resentencing’ under ORS 138.222(5)(a).”
We rejected the state’s argument, reasoning that “[t]his situation is controlled by ORS 138.222(5)(b), which provides that, ‘ [i]f the appellate court, in a case involving multiple counts of which at least one is a felony, reverses the judgment of conviction on any count and affirms other counts, the appellate court shall remand the case to the trial court for resentencing on the affirmed count or counts.’”
The state now contends that Skaggs wrongly decided that a merger error involves the reversal of a judgment of conviction for purposes of ORS 138.222(5)(b). In the state’s view, that paragraph was never intended to apply to merger errors and addresses only the limited circumstance in which an appellate court reverses the underlying adjudication of guilt, so we should overrule Skaggs and direct a more limited remand in this case, as authorized by ORS 138.222(5)(a) {“If the appellate court determines that the sentencing court, in imposing a sentence in the case, committed an error that requires resentencing, the appellate court shall remand the entire case for resentencing.” (Emphasis added.)).
As we recently reiterated in State v. Civil,
The state contends that this case presents the latter circumstance, because we decided Skaggs without the benefit of briefing regarding the correct interpretation of ORS 138.222(5)(b). That is, although the defendant in Skaggs sought a remand as a result of a merger error, he had not identified the statutory source of authority for that remand, and
Although the state is correct that we construed the statute in Skaggs without briefing from the parties, that alone is not a sufficient basis on which to overrule our previous construction. “[W]e begin with the assumption that issues considered in our prior cases are correctly decided, and ‘the party seeking to change a precedent must assume responsibility for affirmatively persuading us that we should abandon that precedent.’" Farmers Ins. Co. v. Mowry,
First, and most fundamentally, the state does not offer a compelling argument as to why the plain text of ORS 138.222(5)(b) excludes merger errors. The state frames the “precise question” of statutory construction as “whether the operative phrase in ORS 138.222(5)(b)—viz., ‘reverses the judgment of conviction on any count and affirms other counts’—is a reference to the judgment itself or rather only a reference to the underlying adjudication of guilt” (Emphases by the state.) The state then argues:
“Although paragraph (b) uses the phrase judgment of conviction,’ it also limits its application only to those cases in which the appellate court ‘reverses’ the judgment of conviction on any count but nonetheless ‘affirms other counts.’ *** [G]iven that the statute speaks in terms of an appellate court that ‘reverses’ one or more of the convictions while it ‘affirms’ one or more of the others, it necessarily is speaking only of the adjudications of guilt on the individual counts, not the single, final written judgment entered in the case.”
(Emphases by the state.)
The state’s argument assumes a false dichotomy: the “single, final written judgment” versus the “adjudications of guilt.” Although it might simplify matters if the criminal law could be divided that cleanly, the phrase “judgment of conviction” is often used in reference to the individual judicial determinations, embodied within a single judgment document, that are entered on guilty adjudications and serve as the basis for a sentence. See, e.g., State v. Martine,
Nor does the state’s explanation of the legislative history of ORS 138.222 (5)(b) convince us to overrule Skaggs. The state points out that the “impetus for the bill,” House Bill (HB) 2224 (2005), was this court’s opinions in State v. Fry,
In the state’s view, that history suggests that the legislature intended merger errors to continue to be addressed, as they were in Rodvelt, under the text that is now paragraph (a), and intended for the reversal of adjudications of guilt (at issue in Fry) to be resolved under the new paragraph (b). But the legislative history cited by the state, although in some ways consistent with the state’s theory, also refers to “codifying” Rodvelt, see Staff Measure Summary, Senate Committee on Judiciary, HB 2224 (2005) (“Codifies Court of Appeals ruling in State v. Rodvelt,
Furthermore, Rodvelt itself undermines the state’s contention that the legislature, in responding to that opinion, necessarily would have understood merger errors to result in something other than the reversal of a “judgment of conviction.” In Rodvelt, we repeatedly referred to the merger error in that case as one that involved “reversal of a conviction.” In fact, we equated the “reversal of a conviction” based on merger errors with those circumstances in which we reverse a conviction based on the trial court’s failure to grant a motion for a judgment of acquittal.
Next, we turn briefly to the state’s suggestion that our disposition in Skaggs is somehow inconsistent with previous Supreme Court decisions. In particular, the state cites a capital case, State v. Bowen,
“Defendant relies on paragraph (b) to assert that this court was obligated to remand the ‘entire case’ for resen-tencing. The state argues that paragraph (b) does not apply because this court did not reverse any of the murder convictions within the meaning of that paragraph by directing that they be merged into a single conviction. According to the state, paragraph (a), instead, is the operative provision, and no remand for resentencing was required under it because this court did not determine that the sentencing court, in imposing the sentence, committed an error that requires resentencing. We do not sort through the parties’ respective arguments at greater length or resolve them on their merits because we conclude that defendant’s claim of error is not properly before us at this juncture!’
Id. at 473 n 3 (emphasis added). In short, neither Bowen, nor the other Supreme Court decisions cited by the state,
Finally, we observe that ORS 138.222(5)(b) was enacted because of the state’s concern that we were not remanding in every case in which one of multiple convictions was reversed, and it proposed a broadly worded statutory fix that eliminated this court’s ability to fashion a narrower remand. If the state is now concerned that ORS 138.222(5)(b), as construed by this court, gives the state more than it asked for, that concern likewise can be addressed by the legislature—yet another reason not to overrule Skaggs under these circumstances. See Mowry,
For the foregoing reasons, we conclude that the state has failed to demonstrate that our decision in Skaggs should be overruled. Accordingly, we adhere to that decision and, based on the trial court’s failure to merge the guilty verdicts on Count 1 and Count 6, remand for resentencing under ORS 138.222(5)(b).
Notes
The trial court sentenced defendant to terms of 36 months in prison on Count 1 and Count 2 (second-degree animal abuse), to be served concurrently, and one-year jail terms on Counts 3 through 18, each to be served concurrently with all other sentences. On appeal, defendant argues that the 36-month prison terms for Counts 1 and 2 were constitutionally disproportionate, and that the restitution award—$16,622.09 to reimburse the Polk County Sheriffs Office for the costs that it incurred in caring for the entire herd of alpacas—was unauthorized. In light of our remand for resentencing on all affirmed counts, we do not address defendant’s challenges to the proportionality of his sentences or to restitution. See State v. Davilla,
In Count 1, the state alleged that defendant had “unlawfully and recklessly and with criminal negligence fail[ed] to provide minimum care for an animal, to-wit: adult brown female, ID number ‘5’, an animal in defendant’s custody or control, such failure resulting in the death of the animal.” The state further alleged the additional factors—an episode involving more than 10 animals, and more than 40 animals neglected—to make the crime a felony with a category 7 classification. In Count 6, the state alleged that, “[a]s part of the same act or transaction as Count 1,” defendant had “unlawfully and recklessly and with criminal negligence fail[ed] to provide minimum care for an animal, to-wit: adult brown female, ID number ‘5’, an animal in defendant’s custody or control, such failure resulting in the death of the animal.” Count 6 did not include the additional allegations regarding the number of animals that had been neglected.
The state also cites two other capital cases, State v. Tiner,