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Can the Judge Pick and Choose Which Count To Impose the Gun Minimum On?

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by: Ryan Scott • August 16, 2023 • no comments

A very common situation is this. The defendant is charge with a M11 offense, such as Robbery in the First Degree with a Firearm. They are also charged with Felon in Possession of a Firearm with a Firearm. The language in each count "with a firearm" refers to the gun minimum sentence enhancement that is codified at ORS 161.610.

The "gun minimum" carries a minimum of 60 months (5 years) in prison, which makes it less than the mandatory minimum sentence for any M11 offense. However, the minimum can be suspended for the first gun minimum conviction, although whether it is suspended or not, a second gun minimum conviction carries a mandatory 10 years in prison. The first gun minimum can also only be imposed once.

Assume the defendant is convicted of the charges above. Can the trial judge not impose the gun minimum on the robbery count and instead impose it on the felon in possession count? The advantage of doing so is that the felon in possession count -- because it has a separate "victim" than the robbery count -- can be run consecutively. In other words, imposing the gun minimum on the second count would permit a sentence of 150 months (90 plus 60) whereas imposing it on the first count would only allow a much shorter sentence.

The argument is no, the judge cannot pick and choose which count to impose the gun minimum on. The reason why is as follows:

In the above-hypothetical, there can be no dispute that robbery is the "primary offense." 213-003-0001(17) (“’Primary offense’ means the offense of conviction with the highest crime seriousness ranking. If more than one offense of conviction is classified in the same crime category, the sentencing judge shall designate which offense is the primary offense.”)

As the name suggests, the primary offense is to be sentenced first. In fact, the entire sentencing guidelines is premised on the idea of the primary offense being sentenced first. When imposing sentencing on the charge of robbery in the first degree with a firearm, the court must either impose the firearm minimum under ORS 161.610(4) or suspend the sentence under ORS 161.610(5)(a):

If it is the first time that the defendant is subject to punishment under this section, rather than impose the sentence otherwise required by subsection (4)(a) of this section, the court may:
(a) For felonies committed prior to November 1, 1989, suspend the execution of the sentence or impose a lesser term of imprisonment, when the court expressly finds mitigating circumstances justifying such lesser sentence and sets forth those circumstances in its statement on sentencing. . . .

If the court did so, the suspension of the firearm minimum sentence still leaves a legal footprint. Specifically, ORS 161.610(4)(b) imposes a 10 year minimum on a subsequent firearm conviction. A court’s decision to suspend the 60-month sentence is still an application of the statute, because it still has legal effect under 161.610(4)(b):

(4) The minimum terms of imprisonment for felonies having as an element the defendant’s use or threatened use of a firearm in the commission of the crime shall be as follows:
  • * *
(b) Upon conviction for such felony committed after punishment pursuant to paragraph (a) of this subsection or subsection (5) of this section, 10 years, except that if the firearm is a machine gun, short-barreled rifle, short-barreled shotgun or is equipped with a firearms silencer, the term of imprisonment shall be 20 years.

The state will ask to defer the gun minimum from the primary count to count 2, so that the 60-month sentence is imposed on felon in possession and then run consecutively to the robbery charge. This would not be a lawful sentence.

First, of all, there is no authority for the State’s position that a sentencing court can “defer” the gun minimum on the primary count and then impose it on a subsequent count. On a first conviction for a gun minimum charge, the court can either impose the gun minimum or impose a lesser-sentence after finding mitigating factors. It does not say it can be deferred.

Furthermore, as demonstrated by the citations above, even if this court were not to impose the 60 month firearm minimum on the robbery charge, the gun minimum statute – ORS 161.640 – continues to have operational effect, since it would result in a mandatory ten-year minimum on the second gun minimum conviction. It still leaves a legal footprint. Since that footprint remains, the subsequent imposition of a gun minimum sentence on count 2 would violate the prohibition against multiple gun minimum sentences per case.

State v. Pouncey, 303 Or App 365 (2020), is not to the contrary. Defendant in that case made an argument that the case law from the Court of Appeals stated that the firearm minimum had to be imposed on the count sentenced first. That was inaccurate. Case law had not previously addressed this issue at all. Because the defendant misstated the court’s case law, the Pouncey court – somewhat curtly – dismissed the argument without addressing the merits. (“We also reject defendant's assignment of error on the firearm-minimum-sentence issue, because his argument misstates our case law regarding ORS 161.610(4).” [Bold added.])

In other words, it is still an open question as far as the appellate courts are concerned because the court has never been squarely presented with the issue. Nevertheless, the administrative rules, statutes, case law and analysis presented above are not reasonably in dispute.