Graduated Crimes and Separate Statutory Provisions
Today, the Oregon Court of Appeals issued an opinion that found that Robbery in the First Degree and Robbery in the Second Degree are from separate statutory provisions. Consequently, the two counts do not merge. It is not unexpected, and I'm not going to tell you it's wrong. But I do want to explain why I'm not 100% convinced that it's right.
In contrast to other merger decisions, the COA put all its eggs into one basket: the fact that Rob I is an A felony, with both a greater presumptive sentence and a greater mandatory sentence, than Rob II, a B felony. Here's what the court says, and by itself, it sounds pretty convincing:
The court has not retreated from its analysis in White. For example, in describing White, the court stated in Parkins, "It is difficult to see how, when the legislature sets out the offenses in separate sections, defines them as different degrees of an incrementally graded offense, and assigns them different punishments, those can be anything other than separate provisions for purposes of the anti-merger statute." 346 Or at 354-55; see also State v. Blake, 348 Or 95, 98, 228 P3d 560 (2010) (stating the same principle). First-degree robbery and second-degree robbery are in separate statutory sections, as different degrees of incrementally graded offenses, and have different punishments. Thus, they are different statutory provisions for purposes of ORS 161.067(1).
Reading that, it would appear that the COA is bound pretty tightly by precedent. But I want to highlight a quote from Blake that demonstrates that the legislative format is not necessarily, by itself, determinative:
Where the legislature defines each crime in a separately numbered and labeled statutory section, as it does in this instance, it is difficult to see how those sections can be anything other than separate statutory provisions for purposes of ORS 161.067(1). See State v. Parkins, 346 Or 333, 354-55, 211 P3d 262 (2009) (so stating with respect to separate statutory sections defined as different degrees of incrementally graded offense and assigned different punishments); State v. White, 346 Or 275, 294, 211 P3d 248 (2009) (Kistler, J., concurring) (explaining reasons that separate statutory sections should be treated as separate statutory provisions for purposes of ORS 161.067(1)). We need not decide, however, whether the particular format that the legislature used here is determinative of its intent.
In other words, the OSC raises a very high obstacle in front of the defense, but it doesn't claim it's an impossible hurdle. It leaves open the possibility that, in fact, it's a hurdle that could be overcome. In other words, this is the start of the analysis, not the end of it.
Just in case you think I'm gilding the lily with a selective quote from Blake, I would note two things. First, neither White nor Parkins involved crimes of different degrees, so the suggestion of what they might do if the crimes were of different degrees is mere dicta. Secondly, the Parkins quote that today's opinion relies on - while a strongly worded quote - takes its authority from the concurrence in White, not the main opinion. (You may find this amusing: Parkins was written by Justice Linder, who quotes from the concurrence in White, not the main opinion. While she did not write the concurrence, she did join in it. Just keep in mind there's a reason it was a mere concurrence.)
Moreover, look at the quote that today's opinion did take directly from the majority opinion in White, and it's analysis of that quote:
"[T]he legislature did, in fact, distinguish between the different degrees of robbery, creating an ascending scale of different degrees of one crime, each of which it classified as a different level of felony and enacted as a different statute. Identifying a common legislative concern in the two means of proving second-degree robbery-which is similar to the concerns underlying all the robbery statutes, but greater in magnitude than third-degree robbery and less than first-degree robbery-does not eliminate the statutory distinctions, but, rather, gives effect to the legislature's statutory structure." Id. at 289 n 13 (emphasis in original). Thus, although the court described the robbery statutes as creating different degrees of "one crime," the court's analysis demonstrates that it interpreted each degree of robbery as a distinct statutory provision while viewing the two means of proving second-degree robbery as one statutory provision.
I think it's safe to say that today's opinion - in interpreting the White quote - is really putting its thumb on the scale. At least it acknowledges that the White court referred to the different degrees of Robbery as "one crime," but asserts a conclusion - different degrees equals different statutory provisions - that is simply not in the text. What White says, at most, is that different degrees is a factor to be taken into account, not the bright-line rule that the state would like.
And we know that in part because the OSC has rejected bright line rules. I want to bring in a quote from an earlier COA opinion, summarizing White, which explains not only the analysis, but at least implicitly rejects relying on any single factor as dispositive:
In White, the court reaffirmed that, to determine whether a single act violates two or more statutory provisions, a court must determine whether the legislature intended to create a single crime or two or more crimes. 346 Or at 280. That inquiry does not depend-at least not entirely-on the structural form that a criminal statute takes, although the use of a single section is one indication that the legislature intended to define a single crime. Id. Neither does the inquiry turn entirely on whether two or more charges are based on one or more statutes that address separate and distinct legislative concerns. Id. at 283. That is so because, as the court observed in White, "every statutory section that 'requires proof of an element that the others do not,' ORS 161.067(1), necessarily involves a distinct legislative concern-otherwise there would be no need for the additional element." Id. The court therefore clarified in White, that, "[A court views] the statute as a whole, looking to the text, context, and, when appropriate, legislative history of the statute. That analysis includes consideration of whether the sections, although addressing different concerns, also may address, on a more general level, one unified legislative objective." Id. at 283-84. State v. Cufaude
The very thorough, very demanding analysis required by White - and recognized by Cufaude- has been cut short by the court in today's opinion. My fear of course is that unless the OSC grants review, the easy analysis of today's opinion will foreclose any chance of ever merging two crimes from highly related, but graded, statutes.
And here, in the case of Rob I and Rob II, common sense tells us that - different grades aside - these are highly similar crimes. Though not strictly a legal analysis, it is worth noting that it is highly rare to commit Rob I without committing Rob II. Almost, but not quite, impossible. In order to commit Rob I (armed with a firearm) without committing Rob II (representing that one is armed with a deadly or dangerous weapon), you would have to commit a robbery, with a loaded gun in your pants or otherwise in your possession, but never show it to the person you are robbing. At the same time, you couldn't even hint that you might use a deadly or dangerous weapon. I've handled a lot of robbery cases, and I've never had one where the defendant possessed a firearm but kept it completely hidden.
I recognize that it's the hypothetical possibility that such a thing could happen that keeps the two counts from merging under a lesser-included theory. But when two crimes are - de facto - almost indistinguishable, it suggests the possibility that the legislature was largely focused on criminalizing the same behavior, the more serious Rob I addressing a more serious concern, but the overall legislative objective being essentially the same.
Again, I'm not saying the today's opinion is wrong. But it is simplistic, where the OSC precedent demands complexity.
I recognize the danger in asking for the OSC to grant review. The Linder/Kistler analysis may ultimately prevail when the Oregon Supreme Court actually has a case like today's COA case in front of it. But if the OSC doesn't grant review, trial judges will follow today's opinion in any case of crimes involving different degrees, trial attorneys will stop raising it, appellate attorneys will stop arguing it, and the window of opportunity for the OSC to weigh in will be lost.