Martinez v. Cain

• Decision Date: 21 February 2020
• Docket Number: SC S066253
• Citation: 458 P.3d 670,366 Or. 136
• Parties: Pedro MARTINEZ, Petitioner on Review, v. Brad CAIN, Superintendent, Snake River Correctional Institution, Respondent on Review.
• Court: Oregon Supreme Court

366 Or. 136

458 P.3d 670

Pedro MARTINEZ, Petitioner on Review,

v.Brad CAIN, Superintendent, Snake River Correctional Institution, Respondent on Review.

SC S066253

Supreme Court of Oregon, En Banc.

Argued and submitted May 7, 2019.

February 21, 2020

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 case before us presents an issue of criminal law in the procedural context of a post-conviction relief proceeding. Petitioner had been convicted and given separate sentences for (among other things) attempted aggravated murder and 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. Martinez v. Cain , 293 Or. App. 434, 428 P.3d 976 (2018).

On review, the question before us is whether petitioner’s convictions should have been merged under ORS 161.067(1). For the reasons that follow, we reverse the Court of Appeals and post-conviction court.

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 P.3d 285, rev. den. , 357 Or. 640, 360 P.3d 523 (2015). Petitioner had approached the victim, who was sitting in a car.

"[Petitioner], 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 and 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."

Id . at 425, 348 P.3d 285.

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 ORS 163.115 (1)(b) (2011).¹ One of the predicate felonies for felony murder is first-degree robbery. ORS 163.115(1)(b)(G) (2011).²

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. ORS 163.115(1)(b) (2011) (statute applies when person "commits or attempts to commit" any of the predicate felonies).

A defendant attempts to commit a crime when he or she intentionally takes a substantial step toward committing a crime. See ORS 161.405(1).³

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 ORS 163.095(2)(d) (2011).⁴ Throughout this opinion, we will refer to that as "aggravated felony murder," although the statutes drew no such terminological distinction.

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.⁵

Petitioner was found 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 ORS 161.067, which governs merger. That statute sets out when a trial court may enter separate convictions sentences if a defendant has violated multiple statutory provisions as part of the same conduct or criminal episode. Specifically, the relevant subsection of that statute, 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."

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 ORS 161.067(1) applied and did not require separate convictions, then petitioner would only have been have convicted on the attempted aggravated felony murder count. The first-degree robbery count would have merged into that count.

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.⁶

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, 348 P.3d 285. 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 inadequate in (among other things) failing to object to the trial court’s failure to merge the guilty verdict on the first-degree robbery count into the guilty verdict on the attempted aggravated felony murder count. The superintendent moved for summary judgment. He argued that petitioner had not been prejudiced by his counsel’s failure to object because the two counts would not merge as a matter of law. In doing so, he presented two slightly different arguments under ORS 161.067(1).

As noted, ORS 161.067(1) requires the trial court to enter separate convictions if "each provision requires proof of an element that the others do not." The superintendent asserted that aggravated felony murder and first-degree robbery each had elements that the other did not. Attempted aggravated felony murder included the element of personally and intentionally attempting to cause the victim’s death, an element not found in first-degree robbery. First-degree robbery, on the other hand, had an element not required for attempted aggravated felony murder: completion of the robbery. That is, a jury could convict a defendant of attempted aggravated felony murder for having only attempted the robbery, but it could not convict the defendant of first-degree robbery unless the robbery had been completed.

In support, the superintendent also relied on a footnote in State v. Barrett , 331 Or. 27, 10 P.3d 901 (2000). Applying former ORS 161.062(1) —a statute essentially identical to the merger statute at issue here⁷ —this court stated in a footnote that the trial court could enter separate convictions for aggravated felony murder and the underlying predicate felonies:

"[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 address separate 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."

Id . at 37 n. 4, 10 P.3d 901. 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, ...