State v. Taylor, A160914

• Decision Date: 22 August 2018
• Docket Number: A160914
• Citation: 293 Or.App. 460,428 P.3d 939
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Georgio William TAYLOR, Defendant-Appellant.
• Court: Oregon Court of Appeals

293 Or.App. 460

428 P.3d 939

STATE of Oregon, Plaintiff-Respondent,

v.Georgio William TAYLOR, Defendant-Appellant.

A160914

Court of Appeals of Oregon.

Submitted September 29, 2017.

August 22, 2018

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Mary M. Reese, Deputy Public Defender, Office of the Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jacob Brown, Assistant Attorney General, filed the brief for respondent.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

TOOKEY, J.

Defendant appeals a judgment of conviction for, among other offenses, three counts of coercion (Counts 1 to 3), ORS 163.275, and one count of felony assault in the fourth-degree constituting domestic violence (Count 5), ORS 163.160(3). The trial court sentenced defendant to 36 months’ imprisonment on each of Counts 1 to 3 under 7-A on the sentencing guidelines grid block to be served concurrently, and 30 months’ imprisonment on Count 5 under 6-A on the sentencing guidelines grid block to be served consecutively to Counts 1 to 3. On appeal, defendant assigns error to the trial court’s calculation of his criminal history score on Count 5. Defendant contends that the trial court "erred when it found that Count 5 arose in a separate criminal episode and refused to apply the ‘shift-to-I’ rule when imposing a consecutive sentence on Count 5."¹

For the reasons that follow, we conclude that the record does not support the trial court’s conclusion that Counts 1 to 3 were separate from Count 5 for purposes of applying the "shift-to-I" rule. We therefore remand for resentencing and otherwise affirm.

"The question of whether events constitute a single criminal episode is a question of law ***." State v. Burns , 259 Or. App. 410, 420, 314 P.3d 288 (2013), recons. den. and appeal dismissed , 261 Or. App. 113, 323 P.3d 275 (2014). In this case, the facts are not in dispute. Thus, we "review the court’s application of the law to those facts for legal error." Id. at 421, 314 P.3d 288.

At the time that defendant committed the crimes in this case, he was on supervision and had previously been convicted for prior acts of domestic violence against the victim. As a result of that supervision, he was prohibited from having contact with the victim and prohibited from drinking alcohol. Additionally, at the time that he committed the crimes in this case, defendant had active warrants for his arrest.

Notwithstanding the prohibitions on his conduct due to his supervision, on the evening of August 13, 2015, defendant and the victim were drinking together in the victim’s apartment. Also present in the apartment was the victim’s two or three-month-old infant, H. At some point after 1:00 a.m. on August 14, 2015, defendant fell asleep.

After defendant fell asleep, the victim went into the bathroom. Shortly thereafter, defendant woke up and went into the bathroom as well. Defendant grabbed the victim with one hand in the throat and jaw area, which cut off her breathing. Defendant then lifted the victim off the toilet by her throat, carried her out of the bathroom to the living room—a distance of 15 to 25 feet—and threw her on a couch. The time between when defendant lifted the victim off the toilet and when he threw her on the couch was approximately 10 to 15 seconds. Defendant then struck the victim while she was on the couch.

The victim attempted to leave the apartment and got as far as the porch before defendant intercepted her, grabbed her and brought her back into the apartment. Shortly thereafter, H woke up. The victim picked H up, and while she was holding H, defendant grabbed the victim by the neck and pushed her against a wall.

The victim then called 9-1-1 on her cell phone. Defendant, aware that the victim was calling the police, advanced on the victim. Defendant’s demeanor, coupled with the fact that he was moving toward the victim, "convinced [the victim] that if she didn’t terminate the call quickly that there could be an escalation of the physical *** violence that had already occurred." The victim ended the call "after providing police with only the address of the residence." Defendant then grabbed the victim’s phone and broke it into three pieces. After that, he grabbed the victim again and pushed her onto the couch.

The victim attempted to leave the apartment for a second time. She made it to a neighbor’s door, where defendant "caught up with her, grabbed her again *** [in] a bear hug hold[,] and dragged her back to the porch of her residence." Shortly after that, police arrived in response to the terminated 9-1-1 call. Defendant, who had reentered the apartment at some point, did not come out of the apartment for between 30 seconds to a minute. He was then taken into custody.

Defendant was indicted for multiple crimes, including, as relevant to this appeal, three counts of coercion (Counts 1 to 3), ORS 163.275, one count of felony assault in the fourth-degree (Count 5), ORS 163.160(3), and one count of felony strangulation (Count 7), ORS 163.187. After a bench trial, the trial court found defendant guilty of those crimes. The trial court explained when pronouncing its verdict that the first act of coercion, Count 1, "related to the first time that [defendant] took [the victim] back into the house," when he "physically grabbed her back into the residence." The second act of coercion, Count 2, related to "the event involving the breaking of the cellphone." The trial court noted that it did not "find the breaking of the cellphone itself to be the coercive act," but that it was "part of a series of acts that support coercion," including that "when [the victim] was making the call the defendant *** came at her with what she testified *** was a look on his face that indicated to her that if she didn’t stop the call that the situation could escalate," and that by grabbing and breaking the phone he indicated "by his physical acts that any further attempt to call 9-1-1 would be met with similar aggression." The third act of coercion, Count 3, occurred when "defendant grabbed [the victim, and] dragged her again back into her porch area" the "second time that [she] attempted to leave the residence." The trial court explained that for both Count 1 and Count 3 it considered defendant’s conduct to be coercion not only because he grabbed the victim, but also because defendant was "larger *** and significantly stronger" than the victim and because of "previous encounters with [defendant]" where "something had occurred that had left bruising on [the victim] from [defendant]."

The trial court explained that defendant committed felony assault in the fourth degree, Count 5, and felony strangulation, Count 7, when he "cut off [the victim’s airway] for what appears to be [10] to 15 seconds." The state requested that the trial court clarify whether its findings of guilt on Count 5 and Count 7 related to the same or separate incidents of strangulation. The court replied,

"[a]t this point I don’t find on the two strangulations that there was [a]significant break in the activity to make it two separate incidences. It appears that it occurred over a relatively short period of time and so I do find that *** the conduct regarding removing [the victim] from the bathroom by her throat and putting her against the wall by her throat constitute an uninterrupted criminal episode."

As noted above, at defendant’s sentencing hearing, the trial court sentenced defendant to 36 months’ imprisonment, to be served concurrently, on each of Counts 1 to 3 under 7-A on the sentencing guidelines grid block.² It also sentenced defendant to 30 months’ imprisonment on Count 5 under 6-A on the sentencing guidelines grid block to be served consecutively to each of Counts 1 to 3. The trial court concluded that a consecutive sentence on Count 5 was "appropriate" because, although Counts 1 to 3 and Count 5 were part of a continuous and uninterrupted course of conduct, defendant’s conduct "indicat[ed] a willingness to *** commit more than one criminal offense." See ORS 137.123 (5)(a) (permitting "consecutive terms of imprisonment for separate convictions arising out of a continuous and uninterrupted course of conduct" where "the criminal offense for which a consecutive sentence is contemplated was *** an indication of defendant’s willingness to commit more than one criminal offense"). Additionally, the trial court rejected defendant’s argument that it should apply the "shift-to-I" rule when sentencing defendant to a consecutive sentence on Count 5. The trial court reasoned that the "shift-to-I" rule was inapplicable because defendant had "two specific objectives ***, one of which was to cause [the victim] physical injury and the other one was to prevent her from escaping or reporting the crime."

On appeal, defendant argues that the trial court erred when it concluded that the "shift-to-I" rule did not apply when calculating defendant’s criminal history score on Count 5. Defendant argues that if the "shift-to-I" rule applied in this case, the presumptive sentence for Count 5 would be a "three-year probationary sentence." As we have explained,

"[t]he ‘shift-to-I’ rule applies when a defendant is sentenced for multiple felonies in the same proceeding. In that event, the defendant’s true criminal history score is used in assessing the grid block for imposing sentence on the primary offense (and any other offenses for which sentences will run concurrently). OAR 213-012-0020(2)(a)(A). For additional offenses for which consecutive sentences will be imposed, the court is required to use the criminal history score ‘I.’ OAR 213-012-0020(2)(a)(B)."

State v. Mayes , 234 Or. App. 707, 709 n. 1, 229 P.3d 628, rev. den. , 348 Or. 669, 237 P.3d 824 (2010).

The "shift-to-I" rule applies, however, only "when consecutive sentences are imposed for crimes that arise from a single criminal episode." Orchard v. Mills , 247 Or....