State v. Kessler

• Decision Date: 24 July 1984
• Docket Number: Nos. SC,s. SC
• Citation: 297 Or. 460,686 P.2d 345
• Parties: STATE of Oregon, Petitioner on Review, v. Stephen Michael KESSLER, Respondent on Review. S30237; CA A27111; TC C82-07-36517.
• Court: Oregon Supreme Court

Page 345

686 P.2d 345

297 Or. 460

STATE of Oregon, Petitioner on Review, v. Stephen Michael KESSLER, Respondent on Review.

Nos. SC S30237; CA A27111; TC C82-07-36517.

Supreme Court of Oregon,

In Banc.

Argued and Submitted April 4, 1984.

Decided July 24, 1984.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause and filed the petition and briefs for petitioner on review. With him on the briefs were Dave Frohnmayer, Atty. Gen. and James E. Mountain, Jr., Sol. Gen., Salem.

Helen I. Bloch, Salem, argued the cause and filed petition for respondent on review. With her on the briefs was Gary D. Babcock, Public Defender, Salem.

LINDE, Justice.

Both parties seek review of a decision of the Court of Appeals which held that the trial court imposed more separate sentences on defendant than were authorized for the offenses to which he pleaded guilty.

We take the statement of the case from the opinion below:

"On July 25, 1982, six inmates, including defendant, excaped from Rocky Butte Jail. During the course of the escape, four lay ministers were brought to an area controlled by the escapees, made to disrobe and were then placed in a cell. Following that, defendant pointed a gun at two correctional officers and forced them to escort the inmate group to the jail control center. Defendant then escaped."

"Defendant pled guilty to, among other charges, four counts of second degree kidnapping for the episode involving the lay ministers and two counts of first degree kidnapping for the episode involving the correctional officers. The trial court imposed four 10-year maximum sentences for the second degree kidnapping convictions, each with a 5-year minimum sentence, and one 20-year maximum sentence, with a 10-year minimum and one 10-year maximum sentence with a 5-year minimum for the first degree kidnapping convictions, all to be served consecutively."

State v. Kessler, 65 Or.App. 380, 382, 671 P.2d 749 (1983). The Court of Appeals continued that it felt compelled by this court's decision in State v. Linthwaite, 295 Or. 162, 665 P.2d 863 (1983), to "merge" the four second degree kidnapping convictions "into one sentence" and to "merge" the two first degree kidnapping convictions "into one sentence," while protesting "in the strongest possible terms" that it disagreed with the "rule" it felt forced to follow. State v. Kessler, supra, 65 Or.App. 380 at 382 and n. 1, 671 P.2d 749. Because neither Linthwaite nor principles stated elsewhere preclude multiple sentences in this case, we reverse.

I.

At the outset, we note once again that the issue of multiple sentences differs from the issue of multiple statutory violations, and that these issues are difficult to keep separate when the single word "merger" is used to describe both. See State v. Linthwaite, supra, 295 Or. at 174, n. 11, 665 P.2d 863, citing State v. Cloutier, 286 Or. 579, 586, 596 P.2d 1278 (1979). "Merger," of course, is not a statutory word but only a term of convenience, and it loses its convenience when it obscures more than it describes. One offense may be said to be "merged" in another in the sense in which a completed crime includes and "merges" the attempt to commit it, or a murder includes and "merges" the assault that proved fatal or the felony that made an unintended homicide a murder. See, e.g. State v. Fish, 282 Or. 53, 577 P.2d 500 (1978) (conviction of felony murder merges the felony of burglary); State v. Harris, 287 Or. 335, 340, 599 P.2d 456 (1979) (conviction of sodomy merges conviction of sexual abuse); State v. Roach, 271 Or. 764, 767, 534 P.2d 508 (1975) (conviction of possessing a stolen motor vehicle merges into conviction of robbery involving the same vehicle). ¹ But when "merger" is carried into the context of sentencing, it misdirects attention to the point that the defendant committed multiple offenses when that point is not at issue at the sentencing stage. Such usage risks the confusion that appears to have happened in this case when the Court of Appeals stated: "Linthwaite does not require merging the sentence for the first degree kidnapping with the sentence for the second degree kidnapping, because those were different crimes with different elements of proof." State v. Kessler, supra, 65 Or.App. at 382 n. 2, 671 P.2d 749. But the question of cumulative sentences cannot be decided by asking whether different crimes were committed. It is only when a defendant has validly been convicted of separate offenses, when there is no "merger," that a question can arise whether the relevant laws contemplate a single sentence or cumulative sentences for such multiple offenses.

II.

State v. Linthwaite, supra, was the latest in a series of cases involving the question of cumulative sentencing for offenses that do not merge. See State v. Garcia, 288 Or. 413, 605 P.2d 671 (1980); State v. Harris, 287 Or. 335, 599 P.2d 456 (1979); State v. Cloutier, 286 Or. 579, 596 P.2d 1278 (1979); State v. Welch, 264 Or. 388, 505 P.2d 910 (1973); State v. Woolard, 259 Or. 232, 484 P.2d 314, 485 P.2d 1194 (1971). The disposition of offenders is as much a matter of legislative policy, within constitutional limits, as the definition of offenses. State v. Cloutier, supra, 286 Or. at 583-587, 596 P.2d 1278. In the absence of explicit legislation or legislative history on this subject, ² the court therefore has sought to discern the apparent or most probable legislative policy toward cumulative or consecutive sentences. See State v. Linthwaite, supra, 295 Or. at 177-179, 665 P.2d 863; State v. Welch, 264 Or. 392-394, 505 P.2d 910, citing Bell v. United States, 349 U.S. 81, 75 S.Ct. 620, 99 L.Ed. 905 (1955). The answers have not been and cannot be stated as a "rule" without regard to the statutory offenses involved.

It is not necessary to review here all that was said in the cited decisions and to distinguish them from one another. One factual element apparently led the Court of Appeals to conclude that State v. Linthwaite, supra, allowed only one sentence for the second degree kidnapping of the four lay ministers and one sentence for the first degree kidnapping of the two corrections officers. This factual element is that Linthwaite also involved a defendant's conduct directed against several individuals.

In Linthwaite, the defendant brandished a knife, among other violent acts, at four persons. He was convicted and sentenced on a total of 14 separate counts, including five counts of "Recklessly Endangering," two counts of "Menacing," four counts of "Attempting to Use a Dangerous Weapon," two counts of "Criminal Mischief II," and "Reckless Driving." ³ This court held that only one sentence was proper for the defendant's attempt to use a dangerous weapon.

The issues in Linthwaite were complicated by the large number of charges and by defendant's changed articulation of his claim, matters that occupied much of the court's opinion. Both in the trial court and in the Court of Appeals, defendant argued that ORS 166.220(1), the statute under which that crime was charged, did not require the existence of a victim, so that the number of persons toward whom he brandished the knife could not turn his conduct into four separate crimes. This court interpreted ORS 166.220(1) as implying that the forbidden attempt was to use a dangerous weapon against another person. We then rejected an argument by the state that ORS 131.505(3), which defines conduct against several victims as separate offenses for purposes of former jeopardy, also represents a legislative policy of cumulative sentencing. State v. Linthwaite, supra, 295 Or. at 178-179, 665 P.2d 863.

This holding moved the Court of Appeals in the present case to write: "Whatever view the Supreme Court may take of the matter, we do not require some separate, express legislative intent that there be as many sentences as victims. For our part, the legislature's forbidding of the acts in question suffices." State v. Kessler, supra, 65 Or.App. at 382, n. 1, 671 P.2d 749. The court's protest is misplaced. Nothing in Linthwaite stated that there cannot be multiple sentences for offenses against several victims in the absence of "express legislative intent" to that effect. Linthwaite merely stated that the statute on former jeopardy, ORS 131.505(3), did not address the question of cumulative sentencing. That question, as already noted, by definition only arises when there are valid convictions for more than one offense. And without express statutory guidance, a court must assess the implicit policy toward that question as best it can.

The major element in assessing whether multiple statutory violations were meant to carry cumulative punishment is whether they were committed in the course of a single criminal episode joined in time, place and circumstances and directed toward a single criminal objective. See State v. Cloutier, supra, 286 Or. at 595, 596 P.2d 1278 (drawing on ORS 131.515(2)). There the court noted that the test of a single criminal objective is no panacea. People have goals for the long, medium, or short term, and the objective of the immediate act often is pursued as a step toward a more distant goal. One may have fully achieved the immediate goal of the particular offense committed toward a victim although one has not gained one's wider objective. ⁴ 286 Or. at 583, 596 P.2d 1278. Cloutier also drew attention to the problem of multiple victims, pointing out reasons why an overly simple formula would not reflect the dissimilarities between situations that intentionally or unexpectedly involve more than one victim. ⁵ The presence and sometimes the identity of the victim may be integral to the criminal objective, or it may be an incidental and undesired circumstance. 286 Or. at 598-599, 596 P.2d 1278.

The presence or absence of several victims therefore is not conclusive on the question of cumulative sentences. It is not necessarily true that a continuous sequence of criminal acts directed at a...