State v. Porter

• Decision Date: 28 July 2021
• Docket Number: A167246
• Citation: 313 Or.App. 565,494 P.3d 988
• Court: Oregon Court of Appeals
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Michael Joseph PORTER, Defendant-Appellant.

313 Or.App. 565

494 P.3d 988

STATE of Oregon, Plaintiff-Respondent,

v.Michael Joseph PORTER, Defendant-Appellant.

A167246

Court of Appeals of Oregon.

Argued and submitted January 16, 2020

July 28, 2021

Erin J. Snyder Severe, Deputy Public Defender, argued the cause for appellant. Also on the briefs 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. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and Powers, Judge, and Sercombe, Senior Judge.

POWERS, J.

In this criminal case, defendant pleaded guilty to felony driving under the influence of intoxicants (DUII), ORS 813.010 and ORS 813.011 (Count 1), felony driving while suspended or revoked (DWS or DWR), ORS 811.182 (Count 2), and an open container violation, ORS 811.170 (Count 4). On appeal, he challenges the imposition of consecutive sentences on Counts 1 and 2, arguing that the record is insufficient to support the trial court's determination that defendant evinced an intent to commit more than one offense and that the risks posed by DWR caused or created a risk of causing greater or qualitatively different loss, injury, or risk of harm than DUII. We conclude that the trial court erred in imposing consecutive sentences and, therefore, reverse and remand.

STANDARD OF REVIEW

We review a trial court's imposition of consecutive sentences for errors of law and 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). In so doing, we recount the undisputed facts as described by the prosecutor at sentencing with reasonable inferences necessarily viewed in the light most favorable to the trial court's findings. State v. Edwards , 286 Or. App. 99, 100, 399 P.3d 463, rev. den. , 362 Or. 175, 406 P.3d 609 (2017) (citing State v. Byam , 284 Or. App. 402, 406, 393 P.3d 252 (2017) ).

BACKGROUND

On a late June evening, defendant was driving through Albany and nearly struck a group of people gathered on the side of the road. Witnesses reported the incident and followed defendant, who then pulled into a mini-mart, purchased some beer, stumbled out of the store, and got back into his car. A responding officer saw defendant pulling out of the parking lot, hit the curb, and begin weaving down the street. The officer followed defendant a short while until defendant arrived at his home. Defendant had trouble getting out of his car, and the officer observed other signs of impairment. Defendant admitted to having a couple of beers and eventually submitted to a breath test, which revealed a .26 percent blood alcohol content (BAC). Defendant was arrested and later charged with four counts, including DUII and DWR.

Before trial, defendant filed a motion to suppress, which the trial court denied (and which defendant does not challenge on appeal). He then entered a guilty plea as described above, which constituted defendant's eighth DUII and seventh DWR convictions, and the state dismissed Count 3, recklessly endangering another person. As part of the plea agreement, defendant admitted to two sentence-enhancement facts: (1) persistent involvement in similar offenses, and (2) a .26 BAC, which was greater than typical and caused an increased threat of harm to the public.

At sentencing, the parties disputed whether the trial court should impose a consecutive sentence for the DUII and DWR convictions under ORS 137.123(5), which provides a court with discretion to impose consecutive sentences for separate convictions arising out of a continuous and uninterrupted course of conduct only after certain findings have been made. The state argued that the court should impose consecutive sentences because defendant's record illustrates his unwillingness to change his behavior. Further, because of the admitted sentencing enhancement facts and because DUII and DWR "contain separate elements and the elements show and require an intent to commit separate crimes," the court, according to the state, was "empowered to impose consecutive sentences for those two crimes" under ORS 137.123. Defendant asserted that various mitigating factors militated toward imposition of concurrent sentences, and specifically argued that DUII and DWR "necessarily were all part of the same course of conduct," reasoning that they "each occurred at exactly the same time and they each stopped at exactly the same time."

The trial court sentenced defendant to 22 months for the DUII conviction and a consecutive 10-month term for felony DWR. In so doing, the court made alternative findings. With respect to ORS 137.123(5)(a), the court found that "[d]efendant's willingness to drive while under the influence of intoxicants and while suspended indicate[s] a willingness to commit more than one criminal offense." With respect to ORS 137.123(5)(b), the court concluded that,

"driving while suspended offers, I think, a minimal threat to the community. I don't know that there is a significant threat just by not having a license while you drive. But driving at a .26 [BAC] offers a risk of causing greater or qualitatively different loss. So I find under either [ ORS 137.123(5)(a) or (5)(b) ] a consecutive sentence is allowed."

On appeal, defendant raises three assignments of error, two of which are now moot given the issuance of an amended judgment while this appeal was pending that defendant agrees adequately resolved those assignments of error. Defendant's remaining assignment of error challenges the trial court's imposition of sentences by arguing that the record does not support either of the trial court's determinations.

With respect to ORS 137.123(5)(a), defendant asserts that there is no evidence in the record to evince defendant's willingness—or a "separate and distinct intent"—to commit DUII and DWR. Defendant argues that, by driving while intoxicated, he "concurrently—by a single act (driving)—committed both DUII and DWR," and, therefore, nothing in the record "supports the inference that defendant drove to commit DWR, as opposed to just driving while intoxicated." The state contends that "it was inferable that defendant was willing to commit both felony DWR and felony DUII. A person does not have to commit the offense of DUII to commit the offense of DWR and vice versa." That is because "[c]hoosing to drive in disregard of a revocation is a separate and distinct offense, with a different factual basis, from choosing to drive while intoxicated." Therefore, according to the state, "the fact that defendant * * * committed both offenses demonstrated that the offenses were not merely incidental to each other and that he was willing to commit each offense."¹

With respect to ORS 137.123(5)(b), defendant argues that the trial court erred in making defendant's DWR sentence consecutive to the DUII sentence based on a finding that the "DUII created a risk of ‘greater or qualitatively different loss’ than DWR." Defendant asserts that, because "defendant's convictions for DUII and DWR were predicated on the same act—defendant's driving—the harms caused by defendant's conduct were the same." The state remonstrates that DUII and DWR involve a risk of causing qualitatively different harms. That is, defendant

"harmed the state by disregarding the revocation of his driver's license and driving on the public roads despite being prohibited from doing so. Although that harm was abstract and may have amounted to ‘a minimal threat to the community’—as the trial court put it—that was the actual harm caused by defendant's regulatory crime given its nature."

By contrast, the "risk of harm from defendant's felony DUII offense *** was qualitatively different" because "[t]he legislature enacted that prohibition to protect against the risk that an intoxicated driver would cause an accident that causes death, physical injury to persons, or damage to property." For the reasons explained below, we agree with defendant's arguments on both of the trial court's alternative findings.

ANALYSIS

ORS 137.123 provides, in part:

"(5) The court has discretion to impose consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct only if the court finds:

"(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 during a continuous and uninterrupted course of conduct."

As noted earlier, the trial court made alternative findings in support of consecutive sentences, which we address in turn.

ORS 137.123(5)(a) is, "in many ways, amorphous—and perhaps inscrutable." State v. Anderson , 208 Or. App. 409, 415, 145 P.3d 245 (2006), rev. den. , 343 Or. 33, 161 P.3d 943 (2007). Nothing in the statute "defines the phrase ‘merely incidental.’ Nor does anything in the statutory context or legislative history provide guidance[.]" Id. at 417, 145 P.3d 245 (footnote omitted). In Anderson , however, we were able to glean "some guidance" from our past decisions. Id. In that case, we distilled three "instructive, albeit hardly conclusive, principles" after tracing the statute's history and evolution:

"First, the determination of whether a defendant evinced the requisite ‘willingness to commit more than one criminal offense’ is, as with any other determination of

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