State v. Flores

• Decision Date: 30 October 2013
• Docket Number: 100331053,A148139.
• Citation: 259 Or.App. 141,313 P.3d 378
• Parties: STATE of Oregon, Plaintiff–Respondent, v. David Constancio FLORES, Defendant–Appellant.
• Court: Oregon Court of Appeals

259 Or.App. 141

313 P.3d 378

STATE of Oregon, Plaintiff–Respondent,

v.David Constancio FLORES, Defendant–Appellant.

100331053; A148139.

Court of Appeals of Oregon.

Argued and Submitted Feb. 19, 2013.

Decided Oct. 30, 2013.

Mary M. Reese, Senior Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Doug M. Petrina, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

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

SCHUMAN, P.J.

Defendant was convicted of unlawful use of a weapon with a firearm and felon in possession of a firearm with a firearm. As explained below, these awkward and somewhat redundant crime titles result from the fact that unlawful use of a weapon, ORS 166.220,¹ and felon in possession of a firearm, ORS 166.270,² are both felonies, and ORS 161.610(2) provides that “[t]he use or threatened use of a firearm * * * by a defendant during the commission of a felony” creates an “aggravated * * * crime” that “may be indicated by adding the words ‘with a firearm’ to the title of the offense.” On appeal, defendant contends that the trial court erred in failing to merge the two guilty verdicts into a single conviction for felon in possession of a firearm with a firearm; in the alternative, he argues that, if the convictions do not merge, then the court erred in imposing consecutive sentences. We conclude that the convictions merge and that, therefore, the court erred in imposing consecutive sentences. We therefore reverse and remand.

For purposes of this appeal, only a few facts are relevant, and, because defendant was found guilty by a jury, we recite them in the light most favorable to the state. State v. Johnson, 342 Or. 596, 598, 157 P.3d 198 (2007), cert. den.,552 U.S. 1113, 128 S.Ct. 906, 169 L.Ed.2d 753 (2008). Defendant is a felon and, during a heated dispute with an acquaintance, he possessed a handgun and threatened to use it against the acquaintance. As a result, he was charged with, and convicted of, the two crimes described above. ³ After the jury returned its verdict, defendant argued that the two convictions should merge or, if not, that he should receive concurrent sentences. The court rejected both of those arguments. This appeal ensued.

Merger of convictions is governed by ORS 161.067 and case law construing it. The statute provides, in part:

“(1) 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.

“(2) When the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims.

“(3) When the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the same statutory provision against the same victim, there are as many separately punishable offenses as there are violations, except that each violation, to be separately punishable under this subsection, must be separated from other such violations by a sufficient pause in the defendant's criminal conduct to afford the defendant an opportunity to renounce the criminal intent[.]”

The state contends that the court properly denied merger based on subsections (1) and (2).

We begin with subsection (1). Although the text of that subsection establishes when the court may not merge, it has been interpreted to imply its converse, that is, when the court must merge: Merger must occur when a defendant's acts constitute the same conduct or criminal episode, violate two or more statutory provisions, and all the elements of one offense are necessarily included in the commission of the other offense. State v. Blake, 348 Or. 95, 99, 228 P.3d 560 (2010) (“[I]f one offense contains X elements, and another offense contains X + 1 elements, the former offense does not contain an element that is not also found in the latter offense [and] * * * there is only one separately punishable offense.”). For purposes of the analysis under subsection (1), the parties agree that defendant's acts constitute a single criminal episode and violate two statutory provisions. They dispute whether all of the elements of unlawful use of a weapon with a firearm are subsumed in the elements of felon in possession of a firearm with a firearm.⁴

That dispute, in turn, depends on whether the “with a firearm” factor from ORS 161.610(2) is an element of the offense that it aggravates. According to defendant, the elements of FIP are: (1) defendant is a felon, and (2) defendant owns, possesses or controls (3) a firearm. However, defendant argues, FIP is not the crime under which he was indicted and convicted; rather, he was indicted and convicted under FIP-firearm. That is so, defendant argues, according to the plain text of ORS 161.610(2):

“The use or threatened use of a firearm, whether operable or inoperable, by a defendant during the commission of a felony may be pleaded in the accusatory instrument and proved at trial as an element in aggravation of the crime as provided in this section. When a crime is so pleaded, the aggravated nature of the crime may be indicated by adding the words ‘with a firearm’ to the title of the offense. The unaggravated crime shall be considered a lesser included offense.”

(Emphasis added). Thus, the elements of FIP-firearm are (1) defendant is a felon, (2) defendant owns, possesses, or controls (3) a firearm, and (4) defendant used or threatened use of a firearm while committing a felony. By similar logic, defendant maintains that he was also convicted, not of UUW, but of UUW-firearm; the elements of that latter crime (as charged in this case) are (1) a person (2) attempts to use unlawfully against another ⁵ (3) a dangerous or deadly weapon, and, in doing so, (4) threatens to use a firearm (5) during the commission of a felony.

Defendant then goes on to reason that the elements of FIP-firearm subsume or contain all of the elements of UUW-firearm, as follows: If defendant was proved to be a felon, he must be a person; if defendant was proved to have used or attempted to use a firearm while committing a felony, he must also have attempted to use a dangerous or deadly weapon against another. Thus, defendant concludes, the crime of UUW-firearm does not require proof of any element that is not also required to prove FIP-firearm; the former therefore must merge into the latter.

The state challenges this outcome primarily by arguing that ORS 161.610(2), the “with a firearm” statute, does not create an element of the offenses to which it is appended; rather, it is merely a “sentence-enhancement fact,” and case law establishes that sentence-enhancement facts are not elements of the crime whose sentence they enhance. That being the case, the state reasons, merger was prohibited, because UUW contains an element (an attempt to unlawfully use a weapon) not found in FIP, and FIP contains an element (offender is a felon) not found in UUW. In support of the argument that the “with a firearm” provision is a sentence-enhancing fact and not an element, the state relies on several cases: State v. Sawatzky, 339 Or. 689, 125 P.3d 722 (2005); State v. Travalini, 215 Or.App. 226, 168 P.3d 1159 (2007), rev. den.,344 Or. 110, 178 P.3d 249 (2008); State v. Wright, 150 Or.App. 159, 945 P.2d 1083 (1997), rev. den.,326 Or. 390, 952 P.2d 63 (1998); and State v. Merrill, 135 Or.App. 408, 899 P.2d 712 (1995), rev. dismissed,323 Or. 73, 912 P.2d 373 (1996). Each of those cases holds (or states) that a sentence-enhancement fact is not an element of the enhanced crime.

Nonetheless, we find none of the cases persuasive, because none deals with ORS 161.610(2), the “with a firearm” statute at issue here.⁶ The terms of that statute are unambiguous. Again, it provides:

“The use or threatened use of a firearm, whether operable or inoperable, by a defendant during the commission of a felony may be pleaded in the accusatory instrument and proved at trial as an element in aggravation of the crime as provided in this section. When a crime is so pleaded, the aggravated nature of the crime may be indicated by adding the words ‘with a firearm’ to the title of the offense. The unaggravated crime shall be considered a lesser included offense.”

ORS 161.610(2) (emphases added). The proscribed conduct—use or threatened use of a firearm during the commission of a felony—is expressly designated an element. Adding it to an offense creates a new crime, the aggravated crime, which is separate from the “unaggravated crime.”

Defendant's understanding is supported by longstanding Supreme Court precedent. In State v. Wedge, 293 Or. 598, 601, 652 P.2d 773 (1982), the defendant was convicted after a jury returned guilty verdicts on charges of first-degree robbery, burglary, assault, and theft. In sentencing the defendant, the court—not the jury—found as fact that the defendant had violated an earlier version of ORS 161.610, which provided for a minimum five-year sentence for use or threatened use of a firearm during the commission of a crime. Id. at 603, 652 P.2d 773. The defendant argued that, because the use of a firearm was an element of the crime for which he had been convicted, he had a right under Article I, section 11, of the Oregon Constitution to a jury determination as to that element. The Supreme Court agreed:

“Although the challenged statute is denominated an enhanced penalty statute, in effect it creates a new crime. The jury only considered evidence offered on the question of first degree robbery, and convicted him of that offense, but the defendant was sentenced on...