State v. Wilson

• Court: Oregon Court of Appeals
• Writing for the Court: De MUNIZ, P.J.
• Citation: State v. Wilson, 161 Or App 314, 985 P2d 840 (Or. App. 1999)
• Decision Date: 07 July 1999
• Parties: STATE of Oregon, Respondent, v. Gregory Paul WILSON, Appellant.

985 P.2d 840

161 Or. App. 314

STATE of Oregon, Respondent, v. Gregory Paul WILSON, Appellant.

(92-08-34764; CA A100673)

Court of Appeals of Oregon.

Argued and Submitted March 2, 1999.

Decided July 7, 1999.

Richard F. Wolf, Beaverton, argued the cause and filed the brief for appellant.

Jonathan H. Fussner, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before De MUNIZ, Presiding Judge, and DEITS, Chief Judge, and HASELTON, Judge.

De MUNIZ, P.J.

In this criminal proceeding, defendant appeals from sentences imposed on two counts of first degree kidnapping and one count of third degree assault. Those sentences were imposed after defendant successfully appealed related aggravated murder and murder convictions. State v. Wilson, 323 Or. 498, 918 P.2d 826 (1996), cert. den. 519 U.S. 1065, 117 S.Ct. 704, 136 L.Ed.2d 625 (1997). We affirm.

The procedural posture of this case is complex and must be explained in some detail. In 1992, defendant was indicted on nine counts of aggravated murder, one count of murder, one count of second degree kidnapping, two counts of first degree kidnapping, one count of third degree assault, and one count of second degree abuse of a corpse. Those charges stemmed from defendant's alleged involvement in the abduction and murder of Misty Largo. The facts underlying those charges are set out in State v. Charboneau, 323 Or. 38, 913 P.2d 308 (1996). Defendant was convicted on those charges and was sentenced to death on the aggravated murder convictions. At sentencing, the state suggested, and the trial court agreed, that the conviction for second degree kidnapping merged into the two convictions for first degree kidnapping and that the two convictions for first degree kidnapping merged into two of the convictions for aggravated murder. The court further determined that the conviction for third degree assault merged into another of the aggravated murder convictions. In State v. Wilson, on automatic and direct review, the Oregon Supreme Court determined that an evidentiary error required reversal of defendant's murder and aggravated murder convictions but that the erroneously admitted evidence "did not contribute to defendant's convictions for kidnapping, assault, and abuse of a corpse." 323 Or. at 504, 918 P.2d 826. The court's disposition of the case was as follows: "The judgment of conviction is reversed with respect to the charges of aggravated murder and murder. The judgment of conviction is otherwise affirmed. The case is remanded to the circuit court for further proceedings." Id. at 519, 918 P.2d 826.

The present appeal stems from some of the "further proceedings" that occurred in the circuit court after remand. The first question before the trial court on remand concerned the scope of the remand: With the convictions on underlying felonies that formed a part of the basis for the aggravated murder charges affirmed, what issues were to be retried? Following the guidance provided by State v. Boots, 315 Or. 572, 848 P.2d 76,cert. den. 510 U.S. 1013, 114 S.Ct. 606, 126 L.Ed.2d 571 (1993), the court determined that a limited, retrial on the murder and aggravated murder charges would not involve relitigation of the underlying felonies for which defendant's convictions had been affirmed, even though those felonies provided the underlying bases for some of the aggravated murder charges. At about that point in the proceedings, defendant expressed an interest in seeking post-conviction relief on the convictions for kidnapping and assault and in delaying his retrial on the murder and aggravated murder charges until his post-conviction claim had been fully litigated. For reasons that are unclear to us, the state agreed to this procedure, and no further actions were taken to retry defendant for murder and aggravated murder. The state eventually determined that it would be appropriate to have defendant sentenced on the convictions that had been affirmed. The present appeal is the result of that sentencing.¹

At sentencing, the court heard testimony from Dr. Frank Colistro, who indicated that, in his professional opinion, defendant suffered from a severe personality disorder and was at risk of seriously endangering the life and safety of others. The court again merged the conviction for second degree kidnapping with the convictions for first degree kidnapping. On one of the first degree kidnapping convictions, the court imposed an upward departure sentence under the sentencing guidelines of 140 months. On the other first degree kidnapping conviction, the court imposed a concurrent indeterminate dangerous offender sentence of 30 years pursuant to ORS 161.725. On the third degree assault conviction, the court imposed a concurrent sentence of 18 months under the sentencing guidelines.

Defendant appeals from those sentences, raising numerous assignments of error. We review for errors of law. ORS 138.220; ORS 138.222. In several of his assignments of error, defendant contends that the trial court erred in sentencing him on the kidnapping and assault convictions because such sentencing exceeded the scope of the remand in Wilson, 323 Or. at 519, 918 P.2d 826, and because sentencing on convictions that previously had been merged with other convictions constitutes a harsher sentence than was originally imposed, in violation of the rule of law announced in State v. Turner, 247 Or. 301, 313, 429 P.2d 565 (1967). Defendant argues that such sentencing was not permitted because the Oregon Supreme Court's remand did not specify that the "further proceedings" for which it was remanding could include sentencing on the convictions that it had affirmed. Defendant argues:

"An election by the district attorney to not proceed on the greater offenses which the [affirmed convictions] merged into, may free up the circuit court to impose final sentence on [those convictions]. An acquittal on the greater offenses of the merged counts may also create the authority to impose sentence again on [those convictions]." (Emphasis defendant's.)

However, defendant argues that, here, these felonies may not now be sentenced separately from any subsequent reprosecution on the murder and aggravated murder charges because "there is no mechanism available to the trial court, or the appellate court, to `remerge' " the kidnapping and assault convictions into later aggravated murder convictions should such convictions occur.

Defendant asserts that the trial court exceeded the scope of the remand because, in the previous appeal, the state did not cross-appeal the trial court's determination that the convictions for kidnapping and assault merged with the aggravated murder convictions. As noted above, it was the state's position at the original sentencing that those convictions did merge with the aggravated murder convictions, and the state has never taken a position to the contrary. See, e.g., State v. Tucker, 315 Or. 321, 331, 845 P.2d 904 (1993) (convictions for crimes that provided underlying basis for aggravated murder convictions merged with aggravated murder convictions). The state could hardly be expected to cross-appeal on the ground that the trial court correctly merged the convictions. However, the fact that the merger was correct at the time it occurred does not mean that "further proceedings" in light of the reversal of the aggravated murder convictions are prohibited. We do not agree that the trial court exceeded the scope of the remand or that the state somehow waived the right to have defendant sentenced on those convictions by taking the position that it did in the previous proceeding. The issue did not exist until the Oregon Supreme Court reversed defendant's aggravated murder convictions and affirmed the convictions for kidnapping and assault. Nothing in the wording of the Supreme Court's remand indicated that the lower court could not proceed to sentence defendant on those convictions that had been affirmed but for which no sentence had been imposed due to the earlier merger. The trial court did not exceed the scope of the Supreme Court's remand in sentencing defendant on those convictions that had been affirmed. See State v. Walton, 134 Or.App. 66, 70-71, 894 P.2d 1212,rev. den. 321 Or 429 (1995) (under similar circumstances, trial court "properly imposed a sentence on the convictions that the Supreme Court affirmed").

We express no opinion on whether separately sentencing those offenses that previously had merged with aggravated murder convictions based on the same criminal conduct may lead to a potential sentencing problem in the future. Defendant appears to be correct that, should he be convicted again on the aggravated murder charges, there is no procedural mechanism for "re-merging" the present sentences into whatever sentence he receives on the aggravated murder convictions, which could implicate the rule of law from Turner that a defendant generally should not be subject to harsher penalties for the same crimes as a result of a successful appeal. Defendant's argument on this question, however, is not ripe and will not be ripe unless and until he is again convicted of murder or aggravated murder. The error, if any, is not one that has occurred but is one that may occur, depending on future events.

The same sort of ripeness problem affects defendant's next assignment of error: "That the trial court is denying Mr. Wilson a speedy retrial of his aggravated murder charges by imposing sentences upon him 15 months after the Supreme Court remanded his case and 4 months after he had commenced his post conviction relief case on the same counts." Leaving aside the fact that it was defendant himself who sought these delays in his retrial so he could seek post-conviction relief, we must point out that whatever merits this assignment of error may have are undoubtedly connected to his retrial on murder and...