State v. Sanders

• Court: Court of Appeals of Oregon
• Writing for the Court: LANDAU, P.J.
• Citation: 74 P.3d 1105,189 Or. App. 107
• Parties: STATE of Oregon, Respondent, v. Gary Delano SANDERS, Jr., Appellant.
• Decision Date: 06 August 2003

74 P.3d 1105
189 Or. App. 107

STATE of Oregon, Respondent,
v.
Gary Delano SANDERS, Jr., Appellant

9807-36177; A106379.

Court of Appeals of Oregon.

Petition for reconsideration February 25, 2003.

Petition for reconsideration filed June 12, 2003.

Decided August 6, 2003.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Stacey RJ Guise, Assistant Attorney General, for petition.

Peter A. Ozanne, Executive Director, Office of Public Defense Services, and Kimi Nam, Deputy Public Defender, contra.

Before LANDAU, Presiding Judge, and ARMSTRONG¹ and BREWER, Judges.

On respondent's petition for reconsideration February 25, 2003.

Appellant's response to petition for reconsideration filed June 12, 2003.

LANDAU, P.J.

The state petitions for reconsideration of our opinion in this case, State v. Sanders, 185 Or.App. 125, 57 P.3d 963 (2002), asserting that we erred in ordering the trial court to merge two of defendant's convictions and in failing to remand the entire case for resentencing, ORS 138.222(5). For the reasons explained below, we allow reconsideration, modify our opinion, adhere to it as modified, and remand the case for resentencing.

74 P.3d 1106

As described in our opinion, defendant was convicted of one count of first-degree assault, ORS 163.185; three counts of second-degree assault, ORS 163.175; and four counts of fourth-degree assault, ORS 163.160; arising out of a single criminal episode involving one victim. He appealed. On appeal, the parties agreed that, under the facts of this case, one count of second-degree assault was a lesser-included offense of one count of first-degree assault. We also agreed. We then applied ORS 161.067(3) as interpreted in State v. Barnum, 333 Or. 297, 39 P.3d 178 (2002), and concluded that, because the relevant assaults were not "separated * * * by a sufficient pause" in defendant's criminal conduct, they were not "separately punishable." Sanders, 185 Or.App. at 130, 57 P.3d 963. We reversed and remanded "with instructions to merge convictions on Counts 1 and 2" and otherwise affirmed. Id

As noted, the state argues that we erred in instructing the trial court to merge the relevant two convictions. According to the state, consistently with Barnum and State v. McCloud, 184 Or.App. 659, 56 P.3d 962 (2002), where two crimes are not separated by a sufficient pause under ORS 161.067(3), only the sentences, and not the convictions, merge. The state also contends that the trial court's error in this case constituted an error "in imposing a sentence in the case" within the meaning of ORS 138.222(5) and therefore requires this court to remand the entire case for resentencing.

Defendant responds that, consistently with ORS 161.067(1), the relevant convictions for first-degree and second-degree assault "merge" and are not separately punishable under ORS 161.067(3) because there was not a sufficient pause in his conduct. Defendant also argues that ORS 138.222(5) does not require this court to remand the entire case for resentencing because, according to defendant, the trial court did not commit an error requiring resentencing as provided in that statute; rather, it erred in entering judgments of conviction on both of the relevant offenses.

We begin with the state's contention that the relevant convictions in this case do not merge. We disagree. As is undisputed by the parties, the relevant count of second-degree assault was a lesser-included offense of the relevant count of first-degree assault. It necessarily follows that the convictions merge. In State v. Ventris, 183 Or.App. 99, 106 n. 3, 50...