State v. Davis

• Decision Date: 10 September 2014
• Docket Number: A149110.,11CR0811FE
• Citation: 265 Or.App. 425,335 P.3d 322
• Parties: STATE of Oregon, Plaintiff–Respondent, v. John Lee DAVIS, Jr., Defendant–Appellant.
• Court: Oregon Court of Appeals

265 Or.App. 425
335 P.3d 322

STATE of Oregon, Plaintiff–Respondent
v.
John Lee DAVIS, Jr., Defendant–Appellant.

11CR0811FE
A149110.

Court of Appeals of Oregon.

Argued and Submitted Nov. 27, 2013.
Decided Sept. 10, 2014.

335 P.3d 323

Anne Fujita Munsey, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Timothy A. Sylwester, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before WOLLHEIM, Presiding Judge, and DUNCAN, Judge, and HADLOCK, Judge.

Opinion

HADLOCK, J.

265 Or.App. 427

Defendant, who was convicted of murder in 1995, was charged with two counts of felon in possession of a firearm, a Class C felony, after police officers found a rifle and a shotgun in his home on April 14, 2011. See ORS 166.270(5) (“Felon in possession of a firearm is a Class C felony.”). Defendant pleaded no contest and the trial court accepted that plea, finding defendant guilty of both counts. At a later sentencing hearing, defendant argued that the trial court's determinations of guilt should merge under ORS 161.067, resulting in only a single conviction. The trial court denied defendant's merger request and entered a judgment reflecting two felon-in-possession convictions. On appeal, defendant renews his merger argument. The state responds, first, that this court

335 P.3d 324

lacks jurisdiction over the appeal and must dismiss. On the merits, the state argues that merger is precluded because evidence in the record supports an inference that defendant obtained the two firearms at different times, resulting in a pause during which defendant could have renounced his criminal intent. We conclude that we have jurisdiction over this appeal and authority to review defendant's merger argument. On the merits, we affirm.

I. BACKGROUND

In conjunction with entering his no-contest plea, defendant signed a “plea statement” in which he acknowledged, among other things, that he was pleading “no contest” to two counts of felon in possession and that the state would argue for consecutive sentences on those two counts. The trial court accepted the pleas and found defendant guilty. Immediately after the court announced that it would accept the pleas, defendant asserted that it was the appropriate time “to ask the Court to consider merger” of the two counts of felon in possession. On that point, defendant argued that the two counts merged under ORS 161.067(3) because they involved “exactly the same criminal offense” and there was “not sufficient pause” between the two offenses.¹ The state

265 Or.App. 428

objected to defendant's merger argument and requested an opportunity to submit additional briefing on that point. Defendant did not oppose the state's request, and the court scheduled a sentencing hearing.

Shortly before the sentencing hearing, defendant filed a “supplemental memorandum regarding merger and concurrent sentencing” in which he argued that his “convictions should merge,” that “concurrent sentencing [was] required if the two convictions do not merge,” and that the court should impose concurrent sentences even if it had authority to make the sentences consecutive. In a responsive memorandum, the state expressed opposition to defendant's merger request on several grounds, including that defendant had agreed to plead to “both counts of Felon in Possession of a Firearm.” At the merger hearing, a deputy sheriff testified about the circumstances under which law enforcement officers had found the two guns in different areas in defendant's home. During that encounter, the deputy testified, defendant said that the rifle belonged to his wife and that he had known that the rifle was in their home. Defendant also told the deputy that the shotgun belonged to one of his friends, who must have left it at defendant's house; defendant eventually admitted that he had known that firearm was present, too. Defendant later acknowledged that his fingerprints would be on both guns.

At the end of the hearing, the trial court rejected defendant's request for merger, ruling that merger was not warranted because defendant's guns were stored in different locations (“the rifle was stored in a case under a bed in the bedroom, the other one was located in the living room area”) and the guns were owned by different people (one by defendant's wife, the other by a friend). Based on those facts, the court ruled, “a reasonable inference” could be drawn that the two guns “were acquired at different times, in different ways, in different places, again, one by the wife, and another by the friend.” The court concluded that “there was a sufficient pause in the possession of the shotgun versus the possession of the rifle, for an opportunity to renounce the criminal intent.” In accordance with that conclusion, the court entered a judgment reflecting convictions for two

265 Or.App. 429

counts of felon in possession of a firearm.² It is that judgment from which defendant appeals.

335 P.3d 325

II. ANALYSIS

On appeal, defendant argues that the trial court erred when it did not enter a single merged conviction for felon in possession. The state makes two arguments in response. First, the state contends that we lack jurisdiction over the appeal and must dismiss it. Second, the state contends that, on the merits, the trial court properly rejected defendant's merger request. We address the jurisdictional issue first.

A. Appellate jurisdiction

Defendant originally asserted, in his opening brief, that this court has jurisdiction over his appeal under ORS 138.050. That statute provides, in part:

“(1) Except as otherwise provided in ORS 135.335, a defendant who has pleaded guilty or no contest may take an appeal from a judgment or order described in ORS 138.053 [—including, as here, judgments that impose a sentence on conviction—] only when the defendant makes a colorable showing that the disposition:

“(a) Exceeds the maximum allowable by law; or

“(b) Is unconstitutionally cruel and unusual.

265 Or.App. 430

“ * * * *

“(3) On appeal under subsection (1) of this section, the appellate court shall consider only whether the disposition:

“(a) Exceeds the maximum allowable by law; or

“(b) Is unconstitutionally cruel and unusual.”

Alternatively, defendant has suggested (in a memorandum responding to the state's motion to dismiss this appeal) that this court may have jurisdiction under ORS 138.222, because defendant's conviction is for a felony, not a misdemeanor. That statute provides, in part:

“(1) Notwithstanding the provisions of ORS 138.040 and 138.050, a sentence imposed for a judgment of conviction entered for a felony committed on or after November 1, 1989, may be reviewed only as provided by this section.

“ * * * *

“(4) In any appeal, the appellate court may review a claim that:

“(a) The sentencing court failed to comply with requirements of law in imposing or failing to impose a sentence;

“(b) The sentencing court erred in ranking the crime seriousness classification of the current crime or in determining the appropriate classification of a prior conviction or juvenile adjudication for criminal history purposes; or

“(c) The sentencing court erred in failing to impose a minimum sentence that is prescribed by ORS 137.700 or 137.707.

“ * * * *

“(7) Either the state or the defendant may appeal a judgment of conviction based on the sentence for a felony committed on or after November 1, 1989, to the Court of Appeals subject to the limitations of chapter 790, Oregon Laws 1989. The defendant may appeal under this subsection only upon showing a colorable claim of error in a proceeding if the appeal is from a proceeding in which:

“(a) A sentence was entered subsequent to a plea of guilty or no contest[.]”

265 Or.App. 431

In response, the state contends that we do not have jurisdiction under either ORS 138.050 or ORS 138.222. With respect to the

335 P.3d 326

former statute, the state argues that we lack jurisdiction because any error associated with failure to merge the two guilt determinations into a single conviction does not mean that “the disposition” in the case “is...