State v. Barrett, CC 9402002CR; CA A91378; SC S45463.

• Court: Supreme Court of Oregon
• Citation: 10 P.3d 901,331 Or. 27
• Docket Number: No. CC 9402002CR; CA A91378; SC S45463.,CC 9402002CR; CA A91378; SC S45463.
• Parties: STATE of Oregon, Respondent on Review, v. Jacob BARRETT, Petitioner on Review.
• Decision Date: 14 September 2000

10 P.3d 901
331 Or. 27

STATE of Oregon, Respondent on Review,
v.
Jacob BARRETT, Petitioner on Review

No. CC 9402002CR; CA A91378; SC S45463.

Supreme Court of Oregon.

Argued and Submitted October 12, 1999.

Decided September 14, 2000.

Peter Gartlan, Chief Deputy Public Defender, Salem, argued the cause for petitioner on review. With him on the brief was David E. Groom, Public Defender.

Rolf C. Moan, Assistant Attorney General, Salem, argued the cause for respondent on

10 P.3d 902

review. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General

Before CARSON, Chief Justice, and GILLETTE, VAN HOOMISSEN, DURHAM, LEESON, and RIGGS, Justices.²

GILLETTE, J.

This criminal case presents the issue whether a sentencing court may impose multiple life sentences on defendant for the aggravated murder of one victim. The trial court concluded that it had such authority under former ORS 161.062(1), repealed by Or. Laws 1999, ch. 136, § 1 (providing for separate punishments for separate statutory violations)³ and imposed two consecutive life sentences, as well as a third life sentence to run concurrently with the other two. The Court of Appeals affirmed that judgment. State v. Barrett, 153 Or.App. 621, 958 P.2d 215 (1998). We allowed review and now reverse the decision of the Court of Appeals.

The following facts are not in dispute. Defendant and two accomplices robbed a convenience store at gunpoint. During the commission of the robbery, defendant forced the 72-year-old clerk into the back room. The clerk refused to stay there. Defendant shot and killed her when she returned to the store.

Defendant was charged in a five-count indictment with five felonies, including three counts of aggravated murder under ORS 163.095:(1) count 1, for aggravated felony murder, based on defendant's intentional killing of the victim during the commission of a robbery; (2) count 2, also for aggravated felony murder, based on defendant's intentional killing of the victim during the commission of a kidnaping; (3) count 3, for aggravated murder committed to conceal the perpetrator's identity; (4) count 4, for "simple murder" under ORS 163.115; and (5) count 5, for first-degree robbery under ORS 164.415. Defendant pleaded no contest to all counts, and the trial court found defendant guilty of all five charges. The court then "merged" count 4 (simple murder) with count 3 (aggravated murder to conceal identity) and merged count 5 (first-degree robbery) with count 1 (aggravated felony murder committed during a robbery). The trial court then imposed consecutive life sentences, with 30-year minimums each, on counts 1 and 2, and a third life sentence with a 30-year minimum on count 3, to run concurrently with the life sentence imposed on count 1. In support of its decision to impose consecutive sentences on counts 1 and 2, the trial court stated that those two offenses were not merely incidental violations of separate statutory provisions but, rather, indicated defendant's willingness to commit more than one offense.

On appeal, defendant assigned error, first, to the trial court's failure to merge all three convictions for aggravated murder and, second, to the trial court's imposition of consecutive sentences on the two aggravated felony-murder convictions. As noted, the Court of Appeals affirmed.

The Court of Appeals began its analysis by considering the first sentence of former ORS 161.062(1), which 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."

The court observed that this court had held (in State v. Crotsley, 308 Or. 272, 278, 779 P.2d 600 (1989)) that three preconditions must exist for former ORS 161.062(1) to be

10 P.3d 903

applicable to a defendant's conduct: (1) the defendant's acts must constitute the same conduct or criminal episode; (2) the defendant's acts must violate two or more "statutory provisions;" and (3) each "statutory provision" must require "proof of an element that the others do not." Barrett, 153 Or.App. at 623-24, 958 P.2d 215. The Court of Appeals also noted that, in Crotsley, this court held that a defendant violates separate "statutory provisions" for purposes of former ORS 161.062 if the statutory provisions address "separate legislative concerns." Id. at 624-25, 958 P.2d 215

Based on the foregoing review of the statutory and case law, the Court of Appeals concluded that:

"[I]n each of the three counts of aggravated murder of which defendant is convicted, the legislature was trying to address a separate and distinct legislative concern, each of which was intended to be a `single crime.' Conduct supporting each of the three aggravated murder convictions did not merely constitute three alternative ways to commit a single crime. Each involved different harm to the victim and, in our view, each constituted conduct that the legislature intended to punish separately."

Id. at 627-28, 958 P.2d 215. In reaching the foregoing conclusion, the Court of Appeals relied on its earlier holding in a case that posed a similar question, State v. Burnell, 129 Or.App. 105, 877 P.2d 1228 (1994). In Burnell, the court held that a defendant could be sentenced separately under former ORS 161.062(1) for multiple felony murder convictions involving only one victim, when each conviction was based on a separate underlying felony, because each felony-murder conviction was based on proof of an element that had not been required for conviction on the other counts. Id. at 109, 877 P.2d 1228. Noting that the same was true of the various aggravated murder convictions with which defendant in this case was charged and convicted, the court concluded that there was no reason to treat this case differently from Burnell. Barrett, 153 Or.App. at 626, 958 P.2d 215.

For the reasons that follow, we conclude that, although defendant properly was charged with and convicted of multiple counts of aggravated murder based on the existence of multiple aggravating circumstances, defendant's conduct in intentionally murdering one victim did not violate "two or more statutory provisions," as that phrase is used in former ORS 161.062(1). Accordingly, we reverse the decision of the Court of Appeals and remand the case to the trial court for resentencing.

As noted, defendant was charged with and convicted of three counts of aggravated murder, based on three different aggravating circumstances involving the intentional killing of a single victim. Defendant does not dispute that his conduct constituted a single criminal episode for purposes of former ORS 161.062(1). Accordingly, as did the Court of Appeals, we focus on the meaning of the phrase "two or more statutory provisions" in former ORS 161.062(1).

We begin by noting that former ORS 161.062(1) requires both that a defendant's acts violate "two or more statutory provisions" and that each "statutory provision" require "proof of an element that the others do not." In relying on its earlier decision in Burnell, the Court of Appeals in this case appears to have held that the fact that each count of aggravated murder requires proof of an element that the others do not itself establishes the existence of two or more statutory violations. The use of the conjunctive in former ORS 161.062(1), however, indicates that two separate inquiries are required: First, a defendant must violate two or more statutory provisions; only then does the court consider whether each statutory provision requires proof of an element that the others do not.

We interpret the legislature's intent respecting...