State v. Sumerlin

• Decision Date: 20 March 1996
• Citation: 139 Or.App. 579,913 P.2d 340
• Parties: STATE of Oregon, Respondent, v. Willie Anthony SUMERLIN, Appellant. 10-93-09367; CA A84062.
• Court: Oregon Court of Appeals

Page 340

913 P.2d 340

139 Or.App. 579

STATE of Oregon, Respondent, v. Willie Anthony SUMERLIN, Appellant.

10-93-09367; CA A84062.

Court of Appeals of Oregon.

Argued and Submitted April 27, 1995.

Decided March 20, 1996.

Appeal from Circuit Court, Lane County; Ann Aiken, Judge.

James N. Varner, Deputy Public Defender, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender.

Jonathan H. Fussner, Assistant Attorney General, argued the cause for respondent. With him on the brief were Theodore R. Kulongoski, Attorney General, and Virginia L. Linder, Solicitor General.

Before DEITS, P.J., and De MUNIZ and HASELTON, JJ.

DEITS, Presiding Judge.

Defendant appeals from convictions for assault in the second degree, ORS 163.175, assault in the third degree, ORS 163.165, reckless driving, ORS 811.140, driving under the influence of intoxicants (DUII), ORS 813.010, and two counts of reckless endangering, ORS 163.195. Defendant pled guilty to the above charges, which stem from a single criminal episode. We affirm.

On August 17, 1993, defendant was involved in an automobile accident in which the vehicle that he was driving rear-ended another vehicle that was stopped at a red light. At the time of the accident, defendant was intoxicated and he was speeding. The two occupants of the vehicle that he hit, a husband and wife, were injured, prompting the assault charges. The wife, who was 23 weeks pregnant, miscarried and lost her ability to have children. In defendant's vehicle were his two young nephews, giving rise to the two counts of reckless endangering.

After defendant's guilty plea, the trial court sentenced him as follows: On count one (assault in the second degree), 34 months prison and 36 months post-prison supervision; on count two (assault in the third degree), 36 months probation, with 90 days county jail, consecutive to count one; on count four (reckless driving), 180 days county jail, consecutive to count two; on count five (driving under the influence of intoxicants), five years bench probation, with 30 days county jail, consecutive to count four; on count six (recklessly endangering), 180 days jail, consecutive to count five; and on count seven (recklessly endangering), 180 days jail, consecutive to count six.

Defendant assigns error to the trial court's failure to merge the reckless endangering convictions with each other and with the conviction for reckless driving, and to the imposition of consecutive sentences on all six convictions. The state first argues, however, that this court lacks authority to review the merger issues. The state asserts that because defendant pled guilty, his appeal is governed by ORS 138.050 and ORS 138.053, which limit our review to whether the "disposition" exceeds the maximum allowed by law ¹ or whether the disposition is unconstitutionally cruel and unusual. ²

The state relies on our decision in State v. Anderson, 119 Or.App. 23, 849 P.2d 548 (1993) (Anderson II ), for the proposition that an alleged merger error is not reviewable because it does not concern whether the disposition "exceeds the maximum allowable by law." ORS 138.050(1)(a). In Anderson II, the state sought to appeal the trial court's merger of assault and attempted aggravated murder convictions. The appeal was brought under ORS 138.060(5), which allows the state to appeal from a "judgment of conviction based on the sentence, as provided in ORS 138.222." The state asserted that it could appeal the merger of the convictions under ORS 138.222(4)(a), as a claim that the court had "failed to comply with requirements of law in imposing or failing to impose a sentence." We concluded that the court's merger of the convictions did not involve the failure to comply with the requirements of law in imposing or failing to impose a sentence because "[m]erger is not a sentence. It is the predicate of a sentence." Anderson II, 119 Or.App. at 25-26, 849 P.2d 548.

This case, of course, involves a different statute, ORS 138.050(1). The pertinent language of ORS 138.050(1) limits the ability of a defendant who has pled guilty to seek review of a "disposition * * * [that e]xceeds the maximum allowable by law." We have held that a disposition exceeds the maximum allowed by law if it is not imposed consistently with statutory requirements. ³ State v. Anderson, 113 Or.App. 416, 419, 833 P.2d 321 (1992) (Anderson I ).

The above-quoted language governing our review under ORS 138.222(4)(a) and 138.050(1) is sufficiently similar that if, as we said in Anderson II, 119 Or.App. 23, 849 P.2d 548, the merger of convictions does not involve whether the court has "failed to comply with requirements of law in imposing or failing to impose a sentence," ORS 138.222(4)(a), a similar conclusion must follow with respect to whether the disposition here "exceeds the maximum allowable by law" under ORS 138.050(1).

However, on further consideration of this issue, we conclude that our analysis in Anderson II was incorrect. We have two reasons for reaching that conclusion. First, the holding in Anderson II contradicts the plain language of ORS 138.222(4)(a). That statute allows this court in any appeal to review claims that the sentencing court "failed to comply with requirements of law in imposing or failing to impose a sentence " (emphasis supplied). A trial court's merger decision is directly relevant to whether it complied with the requirements of law in failing to impose a sentence under ORS 138.222(4)(a), as well as to whether a defendant's disposition "exceeds the maximum allowable by law" under ORS 138.050(1).

The second reason that we now believe the analysis in Anderson II was wrong is that the anti-merger statutes, ORS 161.062 and ORS 161.067, ⁴ have superseded the case law upon which our decision in Anderson II relied. In State v. Crotsley, 308 Or. 272, 779 P.2d 600 (1989), the Supreme Court concluded that

"The legislative history and text of ORS 161.062 could not be more clear in rejecting earlier case law requiring consolidation of multiple convictions and sentences arising from the same criminal episode. For that reason, defendant's reliance on cases decided prior to the enactment of ORS 161.062 in 1985 is misplaced. * * * Therefore, to the extent that our case law is inconsistent with ORS 161.062, that statute controls and earlier case law is superseded." 308 Or. at 277-78, 779 P.2d 600. (Footnote omitted.)

In determining whether convictions merge under ORS 161.062(1) and ORS 161.067(1), we examine only the statutory elements of each offense, not the underlying factual circumstances recited in the indictment. State v. Sargent, 110 Or.App. 194, 196, 822 P.2d 726 (1991); State v. Heneghan, 108 Or.App. 637, 638, 816 P.2d 1175 (1991), rev. den. 312 Or. 588, 824 P.2d 417 (1992); State v. Owens, 102 Or.App. 448, 450 n. 2, 795 P.2d 569, rev. den. 311 Or. 13, 803 P.2d 731 (1990); State v. Atkinson, 98 Or.App. 48, 50, 777 P.2d 1010 (1989).

Anderson II, however, relied on "merger" case law that focuses not on statutory elements, but rather on the factual circumstances of the underlying criminal act. As support for its statement that "merger is not a sentence," Anderson II quotes the following language from State v. Roach, 271 Or. 764, 534 P.2d 508 (1975).

"Merger is based on the premise that when the act involved in one charge is necessarily involved in another charge, only one offense is committed and only one charge may be the basis for a conviction." 271 Or. at 767 n. 1, 534 P.2d 508. (Emphasis supplied.)

Roach, however, was not a merger case, but rather used the above-quoted language to distinguish "merger" from "double jeopardy." Roach, in turn, cited State v. Clipston, 3 Or.App. 313, 473 P.2d 682 (1970), overruled on other grounds, State v. Miller, 87 Or.App. 439, 742 P.2d 692 (1987). There, we focused on the underlying factual circumstances of the defendant's acts in determining whether the multiple crimes charged should have merged. 3 Or.App. at 325-28, 473 P.2d 682. Accordingly, Roach and Clipston are inconsistent with, and thus superseded by, ORS 161.062, and no longer provide support for the conclusion reached in Anderson II.

For the reasons discussed above we overrule Anderson II, 119 Or.App. 23, 849 P.2d 548. We conclude that defendant's arguments related to the trial court's failure to merge his convictions concern whether the disposition "exceeds the maximum allowable by law" and, accordingly, under ORS 138.050 we have authority to review defendant's sentences.

Defendant first contends that the disposition was not imposed consistently with the "anti-merger" statutes. He contends that under ORS 161.067(1) the reckless endangering and reckless driving convictions should merge because, when the underlying conduct involves a vehicle, all the elements of reckless endangering are necessarily included in reckless driving. ORS 161.067(1) provides:

"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."

As noted above, in determining whether convictions merge under ORS 161.062(1) and ORS 161.067(1), we examine only the statutory elements of each offense. Sargent, 110 Or.App. at 196, 822 P.2d 726; Heneghan, 108 Or.App. at 638, 816 P.2d 1175; Owens, 102 Or.App. at 450 n. 2, 795 P.2d 569; Atkinson, 98 Or.App. at 50, 777 P.2d 1010. If the defining statutes contain different elements, the convictions do not merge. Sargent, 110 Or.App. at 196, 822 P.2d 726. Accordingly, our task is one of statutory comparison, Id.

Under ORS 811.140, a person commits the offense of reckless driving by recklessly driving "a vehicle upon a highway or other premises described in this section in a manner that endangers the safety of persons or property." Under ORS 163.195, a person commits the crime of reckless...