State v. Applegate, C

Decision Date05 March 1979
Docket NumberNo. C,C
Citation591 P.2d 371,39 Or.App. 17
PartiesSTATE of Oregon, Respondent, v. Steven Randall APPLEGATE, Appellant. 77-08-10871; CA 11186.
CourtOregon Court of Appeals

Stephanie A. Smythe, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.

Donald L. Paillette, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief was James A. Redden, Atty. Gen. and Walter L. Barrie, Sol. Gen., Salem.

Before SCHWAB, C. J., and TANZER, RICHARDSON and ROBERTS, JJ.

SCHWAB, Chief Judge.

Defendant was indicted for three crimes alleged to have been committed as part of a single transaction: Count I third degree robbery of Billy D. Dixon "by striking (him) about the head while in the course of committing theft of * * * (Dixon's) lawful currency"; Count II unauthorized use of Mr. Dixon's automobile; Count III first degree theft by taking "lawful currency * * * the property of George K. Rowe, doing business as Roaring West Tavern." Defendant was convicted and sentenced on all counts. Although the issue was not raised in the trial court, on appeal defendant contends that the three counts should be merged and a single conviction entered and single sentence imposed.

The evidence established that Mr. Rowe owned the Roaring West Tavern and Mr. Dixon was the manager. The evening of July 22, 1977, Dixon was tending bar and defendant was a customer. When the tavern closed, Dixon and defendant left together to socialize elsewhere. Dixon placed over $500 in tavern receipts in the trunk of his car, presumably to deposit in the bank the next day. Dixon and defendant then went tavern-hopping for several hours, traveling in Dixon's 1970 Cadillac. Later, by which time it was the early morning hours of July 23, defendant struck Dixon in the face and head and demanded and took the money in his wallet the basis of the robbery charge. Defendant then drove off in Dixon's car the basis of the unauthorized-use charge. When the car was recovered a couple of days later, the tavern receipts were gone from the trunk the basis of the charge of theft of Rowe's property.

Defendant was represented at trial by an experienced criminal defense attorney from the office of the Metropolitan Public Defender. At no point in the proceedings did his counsel in any way suggest that the merger doctrine was applicable or that defendant could not be separately convicted and sentenced on the three counts. When the trial court did, in fact, enter separate convictions and sentences on the three counts, there was not a single syllable of objection.

Whether and to what extent merger questions have to be first raised in the trial court as a condition precedent to appellate consideration has long been a problem in this court. We have frequently noted merger issues especially novel ones despite the fact that they were not raised in the trial court. But as various facets of the merger doctrine have become firmly established by our decisions, we have stated that we will not consider those particular facets unless the merger issue was first raised in the trial court. State v. Allen, 25 Or.App. 57, 548 P.2d 169, Rev. den. (1976); State v. Webber, 14 Or.App. 352, 513 P.2d 496 (1973). Such pronouncements were not intended to, and have not, barred us from considering new and different facets of the merger problem on our own initiative. State v. Boyd, 15 Or.App. 650, 517 P.2d 321 (1973), Rev. den. (1974); State v. Reed, 15 Or.App. 593, 517 P.2d 318 (1973). Thus, a synthesis of our decisions would be: generally, merger questions must be raised in the trial court, especially those merger questions that are relatively settled; but in exceptional circumstances this court reserves the right to consider a merger question not raised in the trial court, especially when it presents a novel problem.

This synthesis was recently challenged in State v. Harris, 37 Or.App. 715, 720, 588 P.2d 100 (1978) (specially concurring opinion). There it was argued that merger "ought not to be the kind of error that is waived if not raised in the trial court." 37 Or.App. at 720, 588 P.2d at 103. Because of this challenge, we here reconsider and attempt to finally resolve the question of whether merger issues must be presented to and preserved in the trial courts.

The presentment-and-preservation or raise-or-waive rule has a partially statutory basis, ORS 17.505 to 17.515 and is embodied in Rule 7.19, Rules of Procedure of the Supreme Court and Court of Appeals. And aside from the statute and court rule, a general common-law raise-or-waive rule has been applied in all types of cases, Rea v. Rea, 195 Or. 252, 245 P.2d 884, 35 A.L.R.2d 612 (1952), including criminal, State v. Braley, 224 Or. 1, 355 P.2d 467 (1968). There are definitely dozens, possibly hundreds, of Oregon appellate decisions that have declined to reach a tendered issue on the ground that it was not raised in the trial court.

There are many rationales for the raise-or-waive rule: that it is a necessary corollary of our adversary system in which issues are framed by the litigants and presented to a court; that fairness to all parties requires a litigant to advance his contentions at a time when there is an opportunity to respond to them factually, if his opponent chooses to; that the rule promotes efficient trial proceedings; that reversing for error not preserved permits the losing side to second-guess its tactical decisions after they do not produce the desired result; and that there is something unseemly about telling a lower court it was wrong when it never was presented with the opportunity to be right. The principal rationale, however, is judicial economy. There are two components to judicial economy: (1) if the losing side can obtain an appellate reversal because of error not objected to, the parties and public are put to the expense of retrial that could have been avoided had an objection been made; and (2) if an issue had been raised in the trial court, it could have been resolved there, and the parties and public would be spared the expense of an appeal.

Admittedly, not all of the rationales for requiring preservation of claimed error are fully applicable to merger issues. However, the needless appeal rationale is fully applicable. Thus, to illustrate, suppose a person were separately charged with transporting and with possessing the same illegal drug at the same time and place, and the jury returned guilty verdicts on both counts. If the defendant then raised the merger question in the trial court, it is settled that the counts should be merged and only one conviction entered and one sentence imposed. State v. Miller, 14 Or.App. 396, 513 P.2d 508 (1973). If, instead, the defendant were permitted to ignore merger in the trial court and to appeal on the sole ground that the trial court erred in not merging, he would be correct, but the parties and public would assume the expense of an appeal that could have been avoided. In this era when the number of appeals and the cost of appeals are both increasing, the needless appeal rationale is sufficient reason standing alone to justify general application of a raise-or-waive rule to merger issues.

The specially concurring opinion in State v. Harris, supra, arguing for appellate consideration of merger issues not raised below, correctly points out that, when a defendant prevails on a merger issue, retrial is not required; instead, "the remedy is a simple one requiring modification of the judgment of conviction and resentencing." 37 Or.App. at 720, 588 P.2d at 103. The decisions of the Oregon Supreme Court hold this is insufficient reason to dispense with the general raise-or-waive rule. In Abbott v. Bob's U-Drive et al., 222 Or. 147, 352 P.2d 598, 81 A.L.R.2d 793 (1960), the defendants contended that the trial court erred in entering a joint and several judgment against them. The Supreme...

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