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Limiting the Gun Minimum to the First Conviction in a Multi-Count Indictment

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by: Ryan • August 16, 2011 • no comments

Assume that your client is convicted of robbery in the second degree in count 1 and felon in possession of a firearm in count 2. Same criminal episode. The gun minimum is alleged on both.

The state seeks a 70 month sentence on the robbery and a consecutive 60 month sentence on the felon in possession, by imposing the gun minimum on count 2. You ask that the gun minimum be imposed on count 1, necessarily resulting in a probation sentence on count 2. Both sides make the appropriate arguments about justice and fairness, and the judge must choose between 130 months and 70 months, or something in between. But do you have a legal argument that the judge must impose the gun minimum on count 1, limiting your client's sentence to a maximum of 70 months, and taking the discretion out of the court's hands?


As you should know if you're doing felony cases, a court may impose only a single gun-minimum sentence per case. See, e.g., State v. Cleveland, 148 Or App 97, 100, 939 P2d 94, rev den, 325 Or 621 (1997) ("The trial court exceeded its authority in entering more than one firearm sentence and thereby imposed an illegal sentence.").

What you may not know is that as a matter of statutory construction, Count 1 is the only count on which the court may impose a gun minimum.

ORS 161.610 provides, in pertinent part: "(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: "(a) Except as provided in subsection (5) of this section, upon the first conviction for such felony, five 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 10 years. (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. (c) Upon conviction for such felony committed after imprisonment pursuant to paragraph (b) of this subsection, 30 years. (5) 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; or (b) For felonies committed on or after November 1, 1989, impose a lesser sentence in accordance with the rules of the Oregon Criminal Justice Commission. (Emphasis added)

In Hardesty, the court considered whether ORS 161.610 allowed multiple gun minimum sentences when the defendant was convicted of multiple gun offenses in a single criminal episode. 68 Or App at 594-95. The court held that the statute authorized only one gun-minimum sentence. The court explained: "[W]e conclude that it is more consonant with the 'use a gun, serve a minimum term' policy of the statute to limit the imposition of the enhanced punishment under ORS 161.610(5)(a)[now ORS 161.610(4)(a)] to the first sentence imposed in a multiple offense situation." Id. (emphasis added). See also State v. Browder, 68 Or App 723, 725, 683 P2d 558 (1984), aff'd, 298 Or 616, 619, 695 P2d 569 (1985) (per curiam) (same).

The court reaffirmed Hardesty a year later when it decided State v. Haywood, 73 Or App 6, 9-10, 697 P2d 977 (1985) (en banc). There the court held: "In construing the language of ORS 161.610, we held that the legislature intended to limit the imposition of a mandatory minimum to 'the first sentence imposed in a multipleoffense situation.'" 73 Or App 9 (quoting Hardesty, 68 Or App at 594-95; Haywood court's emphasis). See also State v. Pakulak, 75 Or App 418, 421, 706 P2d 595 (1985) (a "firearm minimum must be limited to the first sentence imposed in amultiple offense situation" (emphasis added)); State v. McCrea, 72 Or App 587, 588, 696 P2d 1129 (per curiam), rev den, 299 Or 203 (1985) ("Hardesty applies to concurrent as well as consecutive minimum firearm sentences").

If the trial court disregards state sentencing law and imposes an unauthorized sentence violated defendant's right to liberty and his due process rights under the United States Constitution. See, e.g., Hicks, 447US at 346; Whalen, 445 US at 689 n 4.

There may also be an equal privileges argument, if the imposition of the gun minimum is somewhat arbitrarily imposed, but that's just lagniappe if you can convince the judge her hands are tied by the statutory and case law language above.


This post was largely based on the fine work of Elizabeth Corbridge Ranweiler.