State v. Edwards

• Decision Date: 07 June 2017
• Docket Number: A157590
• Citation: 399 P.3d 463,286 Or.App. 99
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Cody Marshall EDWARDS, Defendant-Appellant.
• Court: Oregon Court of Appeals

286 Or.App. 99

399 P.3d 463

STATE of Oregon, Plaintiff-Respondent,

v.Cody Marshall EDWARDS, Defendant-Appellant.

A157590

Court of Appeals of Oregon.

Argued and submitted January 26, 2016.

June 7, 2017

Meredith Allen, Deputy Public Defender, argued the cause for appellant. With her on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

Before Ortega, Presiding Judge, and Lagesen, Judge, and Garrett, Judge.

GARRETT, J.

In the course of attempting to evade police, defendant fired two shots at a police officer. The first shot missed, and the second shot wounded the officer's leg. Defendant pleaded guilty to offenses including attempted aggravated murder and first-degree assault. The issue on appeal is whether the trial court erred in imposing consecutive sentences on those counts. To do so, the trial court was required to make one of the alternative findings set out in ORS 137.123(5).¹ For the reasons below, we conclude that the record is insufficient to permit either finding. Accordingly, we remand for resentencing.

We recount the undisputed facts as described by the prosecutor at sentencing. See State v. Byam , 284 Or.App. 402, 406, 393 P.3d 252 (2017) (reviewing the imposition of consecutive sentences based on the undisputed facts, "with reasonable inferences necessarily viewed in the light most favorable to the trial court's findings").

After leading police on a high-speed chase, defendant lost control of his vehicle, abandoned it in a field near a stand of trees, and fled on foot. Later, Deputy Buchholz spotted defendant walking just inside the tree line. Buchholz called out to defendant, who then ran away, causing Buchholz to briefly lose sight of him. When Buchholz later saw defendant lying on the ground, defendant announced that he was hurt and needed help. Buchholz replied that he could help, but that defendant first needed to show his hands. Defendant then fired two rounds at Buchholz. The first shot missed, and the second hit Buchholz's leg. The record does not reveal how much time passed between the two shots. Buchholz lost a substantial amount of blood, but survived.

Defendant was indicted on multiple charges, including, as relevant to this appeal, attempted aggravated murder with a firearm, ORS 161.405, ORS 163.095, and ORS 161.610 (Count 1), and first-degree assault with a firearm, ORS 163.185 and ORS 161.610 (Count 2). Defendant pleaded guilty to both counts, admitting in his plea petition that he "intentionally attempted to cause the death of [Buchholz], a police officer, while he was working as a police officer * * * by causing serious physical injury to him with a firearm."

At sentencing, the state recommended consecutive sentences on the two counts under ORS 137.123(5), arguing that defendant had caused two "qualitatively different harms" by firing one shot that was intended to kill but missed and a second shot that hit Buchholz's leg and caused the serious physical injury. In opposing consecutive sentences, defendant argued that the two shots should be considered a single act, citing State v. Warren , 168 Or.App. 1, 6, 5 P.3d 1115, rev. den. , 330 Or. 412, 8 P.3d 220 (2000) (holding that the record did not support the imposition of consecutive sentences pursuant to ORS 137.123(5)(a) for convictions for assault and attempted murder arising out of a single gunshot), and State v. Rettmann , 218 Or.App. 179, 186, 178 P.3d 333 (2008) (holding that consecutive sentences were not authorized by ORS 137.123(5)(b) for convictions for assault and attempted murder arising out of a single cut to the victim's wrist).

The trial court ordered that defendant's sentence for assault run consecutively to his sentence for attempted aggravated murder, explaining its reasoning as follows:

"[W]hile the crimes did occur as part of the same criminal episode, I do find that * * * this case is distinguishable from the case of Warren and the case of Rettmann * * *. In those cases, it was one act. It was one shot in Warren . It was one slice of the wrist in Rettmann .

"Here, you had a number of options after you fired the first shot, and you chose to shoot again. I do find that that is a * * * quantifiably different harm when you shot again and you hit Deputy Buchholz."

We review the trial court's imposition of consecutive sentences for legal error and to determine whether the trial court's predicate factual findings under either ORS 137.123(5)(a) or (5)(b) are supported by any evidence in the record. ORS 138.222(5)(a) ; State v. Traylor , 267 Or.App. 613, 615-16, 341 P.3d 156 (2014).

As noted above, ORS 137.123(5) lays out two sets of alternative findings that may support a trial court's imposition of a consecutive sentence for "separate convictions arising out of a continuous and uninterrupted course of conduct." They are:

"(a) That the criminal offense for which a consecutive sentence is contemplated 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; or

"(b) The criminal offense for which a consecutive sentence is contemplated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course of conduct."

The trial court did not expressly state that it was relying on one or the other of those two paragraphs, and the court was not required to do so in order to impose a consecutive sentence. Austin v. McGee , 140 Or.App. 263, 268, 915 P.2d 1027 (1996) (it was not necessary for the court to identify which statutory paragraph it relied upon to impose consecutive sentences under former ORS 137.123(4) (1993), renumbered as ORS 137.123(5) (1995) ). It is reasonably clear, however, that the court here relied on both. First, the court's reference to a "quantifiably different harm" tracks closely the language of paragraph (b). Second, the court's references to defendant's "choice" to "shoot again" suggest that the court also made a finding under paragraph (a). Cf. State v. Davis , 113 Or.App. 118, 120, 830 P.2d 620 (1992), aff'd , 315 Or. 484, 847 P.2d 834 (1993) (concluding that court's statement that the defendant "had numerous opportunities to renounce criminal intent, but chose to continue the sexual assaults" was adequate to show that the court determined that the commission of one offense was not incidental to the other).

We first address ORS 137.123(5)(a). Under that provision, the question is whether there is any evidence in the record to support a finding that defendant's commission of first-degree assault was "not merely" "incidental" to his commission of attempted aggravated murder, but, instead, demonstrated a separate and distinct intent to commit the lesser offense. In resolving that question, we look to "the relationship between the uncontroverted facts, with reasonable inferences necessarily viewed in the light most favorable to the trial court's findings, and the predicate criminal statutes." Byam , 284 Or.App. at 406, 393 P.3d 252 (citation omitted); see also State v. Anderson , 208 Or.App. 409, 417, 145 P.3d 245 (2006), rev. den. , 343 Or. 33, 161 P.3d 943 (2007) ("[T]he determination of whether a defendant evinced the requisite 'willingness to commit more than one criminal offense' is, as with any other determination of culpable mental states, innately factual.").

We have held that, when a defendant commits two offenses by the same act undertaken to achieve the same purpose, "in the absence of explicit evidence of multiple intents," consecutive sentences are not authorized because the two offenses are "so inextricably intertwined" that the consecutively sentenced offense is necessarily incidental to the more serious crime. Byam , 284 Or.App. at 405, 393 P.3d 252 (emphasis added). If, on the other hand, a defendant commits the consecutively sentenced offense through conduct that is tempo-rally or qualitatively distinct from the act constituting the more serious offense, such evidence may support an inference that the commission of one offense was not merely incidental to the other. See, e.g. , State v. Martinez , 270 Or.App. 423, 428, 430, 348 P.3d 285, rev. den. , 357 Or. 640, 360 P.3d 523 (2015) (consecutive sentences for first-degree robbery and attempted aggravated murder were authorized because the two offenses "began at two distinct moments in time and involved distinct acts," and the defendant "could have chosen not to shoot the victim" after he had already committed first-degree robbery); Traylor , 267 Or.App. at 616, 341 P.3d 156 ("The fact that defendant was more destructive of property than he needed to be in the manner in which he conducted the burglary * * * permits the inference that defendant was willing to commit the separate offense of criminal mischief in addition to the offense of burglary."). Thus, unless the record contains " 'discrete facts' " supporting an inference that a defendant acted with a willingness to commit multiple offenses, imposition of consecutive sentences is not authorized by ORS 137.123(5)(a). State v. Norris , 281 Or.App. 512, 514, 383 P.3d 944 (2016) (quoting Warren , 168 Or.App. at 6, 5 P.3d 1115 ).

We conclude that this record lacks discrete facts to support an inference that defendant's commission of first-degree assault was anything but "merely" "incidental" to his commission of attempted aggravated murder. This case is analogous to Warren , in which we held that consecutive sentences were not authorized for assault and...