State v. Crider

• Decision Date: 28 March 2018
• Docket Number: A158946
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Lester Sherman CRIDER, Defendant-Appellant.
• Court: Oregon Court of Appeals

291 Or.App. 23

418 P.3d 18

STATE of Oregon, Plaintiff-Respondent,

v.Lester Sherman CRIDER, Defendant-Appellant.

A158946

Court of Appeals of Oregon.

Submitted October 11, 2016.

March 28, 2018

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Rond Chananudech, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Joanna L. Jenkins, Assistant Attorney General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Lagesen, Judge.

ORTEGA, P.J.

Defendant appeals a judgment in which he was convicted of (1) failure to report as a sex offender that he changed residence, former ORS 181.812(1)(d) (2013) (Count 1), and (2) failure to report as a sex offender by failing to make an annual report, former ORS 181.812(1)(e) (2013) (Count 2).¹ He assigns error to the trial court's failure to merge the two guilty verdicts, arguing that the subsections of former ORS 181.812 under which he was charged are merely two ways of committing the same crime. He also assigns as plain error the trial court's imposition of $628 in court-appointed attorney fees because the court lacked the authority to do so in the absence of evidence that defendant could pay the fees. The state concedes that the trial court plainly erred as to the imposition of attorney fees, and we accept the state's concession. As for defendant's merger argument, we conclude that the crimes of conviction are separate crimes and, therefore, the trial court did not err in declining to merge his convictions.

We begin with defendant's argument that the trial court erred by not merging the guilty verdicts, a ruling that we review for legal error. State v. Black , 270 Or. App. 501, 504-05, 348 P.3d 1154 (2015). Defendant was charged with the following two counts of failure to report:

"COUNT 1

"The defendant, on or about December 11, 2014, in Washington County, Oregon, being a person who was required by law to report in person, as a sex offender, to the Department of State Police, a chief of police or a county sheriff or, if the person is under supervision, to the supervising agency, within 10 days of a change of residence in this state, having changed residence in this state and having knowledge of the reporting requirement, did feloniously fail to report as required.

"COUNT 2

"The defendant, on or about December 11, 2014, in Washington County, Oregon, being a person who was required by law to report in person, as a sex offender, to the Department of State Police, a chief of police or a county sheriff or, if the person is under supervision, to the supervising agency, within 10 days of his birth date, and having knowledge of the reporting requirement, did unlawfully fail to make an annual report , as required, to an appropriate agency or official within 10 days of his birth date."

(Emphases added.) Count 1 was alleged as a violation of former ORS 181.812(1)(d), which provides that a person who is required to report as a sex offender commits the crime of failure to report if the person "[m]oves to a new residence and fails to report the move and the person's new address." Count 2 was alleged as a violation of former ORS 181.812 (1)(e), which provides that a person who is required to report as a sex offender commits the crime of failure to report if the person "[f]ails to make an annual report." Defendant pleaded guilty to both counts.

At sentencing, defendant argued that, under ORS 161.067(1) (the "anti-merger" statute), the guilty verdicts for the two failure to report counts should merge, because the two offenses violate only one statutory provision.² The trial court rejected defendant's argument, concluding that the failure to report provisions that defendant was charged with violating are "separate laws" and also have "separate classifications," in that one is classified as a misdemeanor and the other as a felony under former ORS 181.812. Failure to report as a sex offender is a Class A misdemeanor, former ORS 181.812(3)(a), except when, among other exceptions, the crime for which the person is required to report is a felony and the person fails to report having moved to a new residence, former ORS 181.812(3)(b)(B). Because defendant's sex offense convictions were felonies, his failure to report a change of address is a felony offense, and his failure to make an annual report is a misdemeanor offense.

On appeal, defendant reprises his merger argument, asserting that his two offenses are violations of the same statutory provision, because each subsection reflects "one unified legislative objective." See State v. White , 346 Or. 275, 283-84, 211 P.3d 248 (2009) (the analysis to determine whether the legislature intended to create a single crime or two separate crimes "includes consideration of whether the sections, although addressing different concerns, also may address, on a more general level, one unified legislative objective"). According to defendant, the fact that the legislature did not separate each of the specified ways that a person can fail to satisfy the sexual offender registration requirements into different statutory sections is "clear evidence that failure to report after a move and failure to report annually are multiple ways to commit a single crime." Defendant compares former ORS 181.812 to other statutes where courts have held that separate paragraphs in a statute do not create separate crimes. See White , 346 Or. at 290, 211 P.3d 248 (holding that separate paragraphs in the second-degree robbery statute do not create separate crimes); State v. Slatton , 268 Or. App. 556, 570, 343 P.3d 253 (2015) (holding that separate paragraphs in the first-degree theft statute, ORS 164.055, do not create separate crimes). Defendant also challenges the trial court's reasoning that, because the offenses involved two different classifications—felony and misdemeanor—they were separate crimes. Unlike State v. Colmenares-Chavez , 244 Or. App. 339, 346, 260 P.3d 667, rev. den. , 351 Or. 216, 262 P.3d 402 (2011), in which we explained that the trial court's decision to not merge guilty verdicts for first-degree robbery and second-degree robbery was proper, in part, because those offenses were assigned different punishments, defendant contends that the offense of failure to report is different because it does not distinguish between "different degrees of an incrementally graded offense."

The state first responds that defendant places too much emphasis on the structure of former ORS 181.812, asserting that the structure of the statute is not dispositive. The state points to the Supreme Court's reasoning in White that "determining whether a defendant violated one statutory provision or two statutory provisions does not depend entirely on the structural form that the criminal statute takes." 346 Or. at 280, 211 P.3d 248. Moreover, the state posits that, because former ORS 181.812 was not enacted as part of the criminal code, it did not conform to the typical format the legislature uses for crimes in the criminal code. Further, the state maintains that the reasoning in Colmenares-Chavez applies to former ORS 181.812, and that the categorization of the failure-to-report offenses as different punishment classifications evinces the legislature's intent that they are separate crimes. Most importantly, the state asserts, the sex offender registration statutes impose on sex offenders a number of separate, independent obligations to report and, therefore, the provisions under former ORS 181.812 that criminalize failures to satisfy those separate and independent reporting requirements are also separate statutory provisions.

We agree with the state. For a single criminal act or criminal episode to give rise to more than one statutory violation,³ three requirements must be satisfied: "(1) defendant must have engaged in acts that are ‘the same criminal conduct or episode’; (2) defendant's acts must have violated two or more ‘statutory provisions'; and (3) each ‘statutory provision must require proof of an element that the others do not.’ " State v. Parkins , 346 Or. 333, 348, 211 P.3d 262 (2009) (quoting State v. Crotsley , 308 Or. 272, 278, 779 P.2d 600 (1989) ). At issue in this case is whether defendant's acts violated two or more statutory provisions; hence, our "fundamental inquiry" is to determine "whether the text, context, and legislative history of the statute demonstrate that the legislature intended to create a single crime or two separate crimes." Slatton , 268 Or. App. at 561, 343 P.3d 253. Because under former ORS 181.806, ORS 181.807, ORS 181.808, and ORS 181.809, a sex offender has separate and distinct obligations to report based on the circumstances, we conclude that the legislature intended the provisions criminalizing the failure to meet those reporting obligations to be concomitantly separate and independent statutory provisions for purposes of the anti-merger statute. In light of the text and context of former ORS 181.812,⁴ it is plain that the paragraphs constitute individual and separate crimes that prevent merger of the guilty verdicts in this case.

To begin with, former ORS 182.812(1) provided, in relevant part, that the criminal punishment imposed for the failure to report applies to a person who is

"required to report as a sex offender in accordance with the applicable provisions ORS 181.806, 181.807, 181.808 or 181.809 and who has knowledge of the reporting requirement[.]

Former ORS 181.806, ORS 181.807, ORS 181.808, or ORS 181.809 (2013) require persons convicted of a sex offense and released from prison, former ORS 181.806, placed on probation, former ORS 181.807, who have moved to Oregon (or nonresidents working or attending school in Oregon), former ORS 181.808, and juveniles adjudicated in juvenile court of sex crimes, former ORS 181.809, to comply with reporting requirements set out in each of the sections....