State v. Martinez

Citation270 Or.App. 423,348 P.3d 285
Decision Date15 April 2015
Docket Number120632718,A153401.
PartiesSTATE of Oregon, Plaintiff–Respondent, v. Pedro MARTINEZ, JR., Defendant–Appellant.
CourtCourt of Appeals of Oregon

Peter Gartlan, Chief Defender, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Matthew J. Preusch, Assistant Attorney General, filed the brief for respondent.

Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and MOONEY, Judge pro tempore.

Opinion

HADLOCK, J.

Defendant was convicted of multiple crimes including attempted aggravated murder with a firearm (ORS 163.095(2)(d) (aggravated murder); ORS 161.405(2)(a) (attempt)), first-degree robbery with a firearm (ORS 164.415 ), and second-degree assault with a firearm (ORS 163.175 ). The aggravating factor underlying the charge of attempted aggravated murder was an allegation that defendant attempted to kill the victim “in the course of and in the furtherance of” committing the crime of robbery. On appeal, defendant makes unpreserved arguments that the trial court erred by failing to merge the guilty verdicts on the robbery and assault counts into the guilty verdict on the count of attempted aggravated murder. We reject those unpreserved merger arguments, presented in defendant's first and third assignments of error, without discussion. In his second assignment of error, defendant challenges the trial court's imposition of partially consecutive sentences on the convictions for attempted aggravated murder and robbery. We reject that argument for the reasons set forth below and, accordingly, affirm.

We review a trial court's decision to impose consecutive sentences for errors of law and to determine whether the trial court's predicate factual findings are supported by any evidence in the record.” State v. Traylor, 267 Or.App. 613, 615–16, 341 P.3d 156 (2014). We describe the facts in keeping with that standard. In a seven-count indictment, the state charged defendant with multiple crimes arising from a single incident. In Count 1, defendant was charged with attempted aggravated murder with a firearm:

[Defendant], on or about June 11, 2012, * * * did unlawfully and intentionally commit and attempt to commit the crime of Robbery in the First Degree and in the course of and in the furtherance of the crime that defendant was committing and attempting to commit, defendant personally and intentionally attempted to cause the death of [the victim], and during the commission of this felony, the defendant(s) used and threatened the use of a firearm * * *.”

In Count 2, defendant was charged with first-degree robbery with a firearm:

[Defendant], on or about June 11, 2012, * * * did unlawfully and knowingly, while in the course of committing and attempting to commit theft, with the intent of preventing and overcoming resistance to defendant's taking of property and retention of the property immediately after the taking, and being armed with a deadly weapon, use and threaten the immediate use of physical force upon [the same victim] * * *.
The state further alleges that during the commission of this felony the defendant used and threatened the use of a firearm.”

Defendant's case was tried to a jury. The state presented evidence that, one spring evening, the victim had driven to a park near his apartment and was relaxing in his car, listening to music, before the start of his graveyard shift at work. The victim noticed defendant, who was parked nearby, talking on his phone. At some point, defendant drove his car over to the victim's car and parked next to him, then left for about an hour. When the victim next saw defendant, defendant was standing next to the victim's car. Defendant, who was “playing with” a gun, asked the victim for his wallet. The victim refused. Defendant then asked the victim to get out of his car, and the victim refused that request, too, saying “you ain't getting my wallet and you ain't getting my car.” Defendant said, “Well, then I'm going to have to shoot you.” As the victim tried to drive away, defendant did just that, shooting the victim once in the arm. The victim testified that his car already was moving when defendant fired; the victim believes that it is possible that the car bumped defendant's hand, causing him to lose some control of the gun when he pulled the trigger. The victim drove the short distance to his home and called 9–1–1. He was transported to a hospital. A doctor who treated the victim testified that the bullet broke the victim's arm and fragments traveled into the victim's chest area, coming within an inch of multiple blood vessels. Had the bullet hit one of the major arteries, the victim probably would have died within ten minutes if he had not received medical care.

The jury convicted defendant of six out of seven crimes charged, including attempted aggravated murder with a firearm and first-degree robbery with a firearm.1 At sentencing, the state advocated for imposition of consecutive sentences on those two convictions. The state did not dispute that the two crimes arose during a single continuous and uninterrupted course of conduct. Rather, the state argued in its sentencing memorandum that consecutive sentences were justified both under ORS 137.123(5)(a), because the robbery was “an indication of defendant's willingness to commit more than one criminal offense,” and under ORS 137.123(5)(b), because the robbery “caused or created a risk of causing * * * qualitatively different loss, injury or harm to the victim.”2 Defendant disputed both points.

The trial court agreed with the state, concluding that it had discretion to order the sentences on the two convictions to run either consecutively or concurrently. The court sentenced defendant to 10 years of imprisonment and three years of post-prison supervision on the conviction for attempted aggravated murder, under ORS 137.700, with a five-year “gun minimum” pursuant to ORS 161.610. On the first-degree robbery conviction, the court sentenced defendant to 90 months of imprisonment and three years of post-prison supervision, also pursuant to ORS 137.700. The court ordered defendant to serve 45 months of that 90–month term of incarceration concurrently with the sentence on the aggravated-murder conviction, with the remainder to be served consecutively. In doing so, the court announced that it agreed with the state's sentencing memorandum in its entirety. The court also expressly found, pursuant to ORS 137.123(5), that the robbery caused a qualitatively different harm than the attempted aggravated murder and that the conduct “was not incidental, but rather a strong indication that * * * defendant was prepared to commit a separate offense.”

On appeal, defendant renews his argument that the court erred by ordering partially consecutive sentences on the convictions for attempted aggravated murder and robbery. Defendant asserts that the record does not support the trial court's ORS 137.123(5) findings “because the legislature took the felony [robbery] into account when it set the penalty for attempted aggravated murder.” According to defendant, because the robbery “was an essential fact or a fundamental component of the attempted aggravated murder conviction,” the robbery “was merely incidental to” that more serious crime. Therefore, defendant concludes, consecutive sentences were not authorized under ORS 137.123(5)(a). Defendant also contends that consecutive sentences were not authorized under ORS 137.123(5)(b) because “the attempted aggravated murder statute fully encapsulates the harm caused by defendant's conduct—an attempted murder during the commission of a felony.”

The state responds that the trial court's findings are supported by the record and are adequate to justify the imposition of partially consecutive sentences under both subsections of ORS 137.123(5). First, the state argues, defendant had already committed acts sufficient to sustain a conviction for first-degree robbery by the time that he decided to shoot the victim, attempting to kill him.” Thus, the state concludes, the robbery was not merely “incidental” to the attempted aggravated murder, but indicated defendant's willingness to commit another crime, and partially consecutive sentences were justified under ORS 137.123(5)(a). As to harms, the state asserts that “the victim's fear over losing his wallet was clearly a qualitatively different harm than the fear of losing his life,” justifying partially consecutive sentences under ORS 137.123(5)(b).

We agree with the state that the trial court was authorized to impose consecutive sentences under ORS 137.123(5)(a). That provision gives a trial court discretion to impose consecutive sentences for multiple convictions arising from “a continuous and uninterrupted course of conduct” if the court finds 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[.] Here, first-degree robbery is the offense for which a partially consecutive sentence was contemplated. Consequently, the trial court could impose that partially consecutive sentence if the robbery “was not merely” incidental to the attempted aggravated murder, but indicated defendant's willingness to commit more than one crime. As the state observes, defendant committed robbery before he tried to kill the victim, and he did so through actions—“playing with” a gun while demanding the victim's wallet—that were distinct from the subsequent act—firing the gun—that constituted the attempt to kill the victim. Because the actions that constituted the two offenses were distinct both temporally and qualitatively, the trial court could properly find that defend...

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9 cases
  • Martinez v. Cain
    • United States
    • Oregon Court of Appeals
    • August 15, 2018
    ...Or. at 34 n. 2, 10 P.3d 901 (stating that underlying felony is not element of aggravated felony murder); see also State v. Martinez , 270 Or. App. 423, 430 n. 4, 348 P.3d 285, rev. den. , 357 Or. 640, 360 P.3d 523 (2015) (applying Barrett 's analysis that underlying felony is not element of......
  • State v. Russell
    • United States
    • Oregon Court of Appeals
    • March 3, 2021
    ...argued that defendant's sentence on Count 3 should be run consecutive to defendant's sentence on Count 1. Relying on State v. Martinez , 270 Or. App. 423, 348 P.3d 285, rev. den. , 357 Or. 640, 360 P.3d 523 (2015), it argued that ORS 137.123(5)(a)4 authorized the court to run defendant's se......
  • United States v. Lawrence
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 18, 2018
    ...that Oregon precedent definitively answers the question whether Robbery I and II are divisible. See also State v. Martinez, Jr. , 270 Or.App. 423, 348 P.3d 285, 289 n.4 (2015) (acknowledging "some tension in the [Oregon] Supreme Court’s case law" as set out in Boots , Pipkin , and State v. ......
  • State v. Lister
    • United States
    • Oregon Court of Appeals
    • August 31, 2022
    ...assault of the victims when he struck them, and then he began committing FPDD as he drove away from the scene. See State v. Martinez, 270 Or.App. 423, 430, 348 P.3d 285, rev den, 357 Or. 640 (2015) (affirming consecutive sentences under ORS 137.123(5)(a), where a robbery and an attempted mu......
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