State v. Byam
Decision Date | 15 March 2017 |
Docket Number | A156994 |
Citation | 284 Or.App. 402,393 P.3d 252 |
Parties | STATE of Oregon, Plaintiff-Respondent, v. Anthony Jonathan BYAM, Defendant-Appellant. |
Court | Oregon Court of Appeals |
284 Or.App. 402
393 P.3d 252
STATE of Oregon, Plaintiff-Respondent,
v.
Anthony Jonathan BYAM, Defendant-Appellant.
A156994
Court of Appeals of Oregon.
Submitted December 16, 2015.
March 15, 2017
Peter Gartlan, Chief Defender, and Mary M. Reese, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeff J. Payne, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and DeVore, Judge, and Haselton, Senior Judge.
HASELTON, S.J.
Defendant pleaded guilty to several charges, including robbery in the first degree, ORS 164.415(1)(b), and unauthorized use of a motor vehicle (UUV), ORS 164.135(1) (a), arising from an incident in which he acquired the keys to a car after threatening the owner with a knife, and then drove away. He appeals the consequent judgment, asserting that the trial court, in imposing sentence, erred in directing that the sentence for UUV be served consecutively to, rather than concurrently with, the sentence for first-degree robbery. Specifically, defendant contends that the court erred in determining that the UUV was "not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious offense but rather was an indication of defendant's willingness to commit more than one criminal offense[.]" ORS 137.123(5)(a). For the reasons that follow, we conclude that the trial court so erred and, consequently, we remand for resentencing but otherwise affirm. ORS 138.222(5)(a).1
The circumstances material to our review are simple and undisputed. Defendant approached the victim, Feist, who was putting his laptop into his car, which was parked on a street in Eugene. Defendant first asked Feist for some change, and Feist complied—and then, after a brief interchange, defendant demanded the keys to Feist's car. Feist initially refused, saying something akin to "Are you serious?" Defendant then pulled out a knife, brandishing it in Feist's face, and Feist gave defendant his keys. Defendant drove away in Feist's car, and the following day, while being pursued by a police officer and while under the influence of methamphetamine, defendant "slammed [Feist's car] into a brick wall outside a Wendy's" restaurant in Springfield.
Defendant was charged by indictment with a variety of crimes, including, as germane to our consideration, first-degree robbery (Count 1) and UUV (Count 2), and subsequently
pleaded guilty to all charges.2 The trial court imposed the statutorily prescribed presumptive sentence of 90 months' incarceration and three years' post-prison supervision on the conviction for first-degree robbery, see ORS 137.700(2)(a)(Q) —and then, notwithstanding defendant's objection, imposed a consecutive, rather than concurrent, sentence of 52 months' incarceration and eight months' post-prison supervision on the UUV conviction.3 In doing so, the court determined that, although the first-degree robbery and the UUV both arose from the same "continuous and uninterrupted course of conduct," the latter was "not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant's willingness to commit more than one criminal offense." ORS 137.123(5)(a).4
On appeal, defendant's sole assignment of error pertains to the imposition of the consecutive, rather than concurrent, sentence for UUV. In that regard, defendant contends:
"The facts of this case—in the light most favorable to the court's finding—were that defendant threatened to use
a knife in order to take a car. Defendant committed the robbery to possess the car and he was able to possess the car only by committing the robbery. Because the robbery and the [UUV] were so intertwined, it cannot be said that one is not incidental to the other or that defendant did not need to commit one crime in order to commit the other. To the contrary, under the facts of this case, defendant could not have committed the [UUV] without committing the robbery; the car owner refused to hand over his keys until defendant threatened to use a knife."
The state remonstrates:
"Viewing the charges and the facts from a practical, real world perspective, it is plain that defendant exhibited a willingness to commit more than one offense. Defendant robbed the victim of [his] car keys at knifepoint. He then operated the victim's vehicle without the victim's permission. Defendant did not have to commit both offenses. Instead, he demonstrated that he was willing to both rob the victim of his belongings and that he was willing to unlawfully operate the victim's vehicle."5
(Internal quotation marks omitted.)
We agree with defendant. As we once observed, ORS 137.123(5)(a)"is, in many ways, amorphous—and perhaps inscrutable." State v. Anderson , 208 Or.App. 409, 415, 145 P.3d 245 (2006), rev. den. , 343 Or. 33, 161 P.3d 943 (2007). Nevertheless, if the conditions that statute prescribes for the imposition of consecutive sentences are to have any meaningful practical application, they must, in the absence of explicit evidence of multiple intents, preclude the imposition of consecutive sentences where, as here, the same act (obtaining the victim's keys through the use of a dangerous weapon), undertaken to achieve the same end (the exercise of control over the victim's car), concurrently violated both criminal statutes. In such circumstances, the two criminal offenses are so inextricably intertwined that the consecutively sentenced offense (here, the UUV) is, necessarily, "incidental" to the "more serious crime" (here, the first-degree robbery) and cannot be deemed "an indication of defendant's willingness to commit more than one criminal offense." ORS 137.123(5)(a).
Our conclusion derives from the relationship between the uncontroverted facts, with reasonable inferences necessarily viewed in the light most favorable to the trial court's findings, see Anderson , 208 Or.App. at 417, 145 P.3d 245 ; see also State v. Traylor , 267 Or.App. 613,...
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