Ryan Scott's Merger Memo
by: • January 22, 2013 • no comments
For the most recent cases that may not have gotten into this compilation, go here.
I. Multiple Counts of the (1) Same Crime, (2) Same Elements, (3) Same Criminal Episode
Merger in this situation is determined by ORS 161.067(3):
- When the same conduct or criminal episode :violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the same statutory provision against the same victim, there are as many separately punishable offenses as there are violations, except that each violation, to be separately punishable under this subsection, must be separated from other such violations by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent.
A complete analysis requires looking at the four emphasized portions above: “sufficient pause,” “victims,” “repeated violations,” and “same statutory provision.” The first three will be addressed in this section, and “same statutory provision” in the next section.
A. SUFFICIENT PAUSE
For a very good discussion of what constitutes a “sufficient pause,” which would be enough to defeat merger in some cases, see State v. Watkins, 236 Or App 339 (July 28, 2010) and State v. Huffman, 234 Or App 177 (March 3, 2010). As observed by Rankin Johnson, a finding of sufficient pause is only relevant when there is a victim, which would not include crimes such as delivery of a controlled substance, in which no victim exists.
- As we have recently explained, a :“sufficient pause” is a “temporary or brief cessation of a defendant’s criminal conduct that occurs between repeated violations and is so marked in scope or quality that it affords a defendant the opportunity to renounce his * * * criminal intent.” State v. Huffman, 234 Or App 177, 184, 227 P3d 1206 (2010). Further, in State v. Barnum, 333 Or 297, 303, 39 P3d 178 (2002), overruled in part on other grounds by State v. White, 341 Or 624, 147 P3d 313 (2006), the Oregon Supreme Court noted that, for there to be “‘a sufficient pause in the defendant’s criminal conduct[,]‘ * * * one crime must end before another begins.”
State v. McConville, __ Or App __ (June 1, 2011)
Practice tip: Would a finding of “sufficient pause” be a jury question, under Blakely v. Washington, just as a finding of “separate criminal episodes” is a jury question in some cases (State v. Mallory)? See the discussion here.
Practice tip: “Merger for sentencing” does not exist.
“To be perfectly clear, the phrase ‘merged for sentencing purposes’ is a misnomer and should never be used because it improperly conflates two distinct parts of the criminal process: the entry of convictions and the imposition of sentences. The concept of merger relates to the former and is controlled by ORS 161.067. The imposition of consecutive or concurrent sentences relates to the latter and is controlled by ORS 137.123. The two statutes operate independently. See State v. White, 346 Or 275, 279 n 4, 211 P3d 248 (2009); State v. Merrick, 224 Or App 471, 472, 197 P3d 624 (2008).”
State v. Mason, ___ Or App ___, f4 (March 30, 2011)
In other words, a finding of a “sufficient pause” isn’t literally a sentencing issue. It is a finding of whether the defendant is guilty or not guilty of a second conviction. And the number of convictions is arguably the very heart of the jury’s bailiwick, under either the state or the federal constitutional guarantees to a jury trial. Therefore, the facts necessary for separate convictions are, possibly, jury questions under the 6th Amendment guarantee of a jury trial.
B. REPEATED VIOLATIONS
Forgery: Just because there are multiple “things,” such as multiple pieces of counterfeit currency (and thus multiple charges of Possession of a Forged Instrument), that is NO obstacle to merger. State v. Merrick, 224 Or App 471, 472-73, 197 P3d 624 (2008). See also State v. Salvador, 237 Or App 424 (Sept 29, 2010)(defendant in possession of 3 blank resident alien cards). “Multiple things” is simply another way of saying “repeated violations.” There is no issue of “sufficient pause,” because there is no pause – sufficient or otherwise — when items are possessed simultaneously. Huffman, supra.
C. ONLY ONE VICTIM PERMITTED
Convenience Store Robbery: When you have a situation where there are multiple counts of the exact same crime, you need to first ask, “does each count have a different victim?” See State v. Hamilton 348 Or 371 (June 10, 2010)(Different victims from a single Robbery serve to prohibit merger of multiple robbery counts, and a person against whom the defendant uses or threatens violence who is a victim, regardless of whether they own or possess the property stolen.)
A quick word about “victims” and whether the state is a “victim” for purposes of merger:
[As] we have previously recognized, the state is not a “victim” for purposes of ORS 161.067. See State v. Ott, 96 Or App. 511, 514, 773 P2d 19, rev den, 308 Or 382, 780 P2d 735 (1989) (“[F]or purposes of ORS 161.062(4), the term ‘victim’ does not encompass * * * the state.”).
State v. Camarena-Velasco, 207 Or App 19, 22-23 (2006)
Felony Hit and Run (do not merge)
Same question as above: how many victims? Until 2011, you might have been correct in concluding that the state is the victim, since the crime is running away, not causing the injury. This conclusion would have been supported by State v. Duffy, which held that “hit and run” was not compromisible, because there was no victim who would have a civil remedy.State v. Duffy, 33 Or App 301 (1978). See also State v. Eastman/Kovach, 292 Or 184, 189-90, 637 P2d 609 (1981). Had this analysis been correct, four people injured, four counts of Felony Hit and Run, only one conviction.
But the COA held that, in fact, the people injured by a felony hit and run are victims, and therefore the counts do not merge. State v. Moncada, ___ Or App ___ (March 2, 2011).
Moncada summarizes the analysis, from cases such as Glaspey and Luers, that should be used in determining who is a victim, when it is not clear from the statute:
We glean a single, salient principle from Glaspey and Luers, which informs the outcome in this case: Where the statute defining a crime does not expressly identify the person who qualifies as a “victim,” the court examines the statute to identify the gravamen of the crime and determine the class of persons whom the legislature intended to directly protect by way of the criminal proscription. [Emphasis added.]
This quote is quite important, because it emphasizes that it is a “class” or category of persons who would qualify as victims, not anyone who might happen to be harmed. (There is always the possibility of collateral harm to persons the legislature did not intend to constitute victims.) Thus, for a crime like ID Theft, where there are competing arguments over who is the victim, judges have a choice: either the victim is the person or business that the defendant intends to defraud or deceive or it is the “real or imaginary” person whose identity is stolen. Can a class of persons include imaginary people when imaginary people can’t, by definition, be harmed? The answer is yet to be determined.
Encouraging Child Sexual Abuse (e.g., multiple photographs, but again the same question: how many victims? It’s an open question per State v. Betnar, 214 Or. App. 416 (August 15, 2007) whether the child in the photo is a “victim” of someone downloading the photo years, maybe even decades, after the photo was taken. There’s no dispute the child is a victim of the photographer, but that’s not the issue here. This argument has prevailed at the trial level in Washington County, but beware of the state shifting its argument from separate victims to separate criminal episodes, based on when the photos were downloaded. There are many problems with the state making the latter argument, and case law on separate criminal episodes should be very familiar to defense counsel – particularly St v. Boyd, St v. Plourd and St v. Mallory.)
Again, no issue of “sufficient pause,” since there is no pause in simultaneous possession. Huffman, supra.
Here is what I think is a big unanswered question in merger law. It involves those cases that may have different victims. The question is this: can a crime sometimes have a victim and sometimes not?
The reason I think this is a question is this: In St v Glaspey and its progeny, the courts have said that whether or not there is a victim (or who the victim is) depends on legislative intent. In other words, you don’t look at the facts of a particular case, you look at legislative intent. Consequently, in Glaspey, the court looked at legislative intent and decided that child-witnesses weren’t victims of Felony Assault IV. It doesn’t matter whether the state could prove that a particular child in a particular case was actually injured (psychologically) by witnessing the assault.
So take a case like ID Theft, where sometimes the “victim” is real and sometimes he’s “imaginary.” Let’s grant that the legislature didn’t intend imaginary victims. In light of the Glaspey analysis, can we say that the legislature intended that the person whose identity is taken is a victim, unless the facts show he doesn’t exist, in which case there is no victim? In other words, did the legislature intend that sometimes we should consider the facts of the case in determining if there is a victim?
Is that at odds with Glaspey, and what authority is there for the “sometimes facts matter” analysis in determining a victim’s existence?
This question also comes up in Reckless Endangering.
In Reckless Endangering, the COA has said there is a discrete victim of the crime. State v. Sumerlin, 139 Ore. App. 579. (And therefore they don’t merge.)
“Civil compromise only applies, however, to crimes having “a discrete victim or victims” and not to offenses committed against the public at large, such as public indecency and reckless driving. Van Hoomissen, 125 Ore. App. at 683; State v. Dugger, 73 Ore. App. 109, 112-13, 698 P.2d 491 (1985). Therefore, it must follow that, as a crime subject to civil compromise, reckless endangering has “a discrete victim or victims.” Because defendant’s nephews were both in the car, his reckless conduct endangered two discrete victims. Therefore, ORS 161.067(2) prohibits the merger of the two reckless endangering convictions. The trial court properly refused to merge those counts.”
But note that State v. Sumerlin cites legislative history that says the recklessly endangering statute “covers potential risks as well as cases where a specific person is within the zone of danger.” 139 Or App at 587 n 7.
I think that that kind of straddling described above (sometimes there’s a specific victim, sometimes not) is inconsistent with the categorical definition of victim at issue in Glaspey and Harbert. Consequently, I think that Sumerlin should be revisited in light of Glaspey‘s determination of who or when there is a victim. If the COA recognizes that they can’t have it both ways (sometimes there’s a victim, sometimes not), and I think under Glaspey they can’t, then they may find there aren’t discrete victims and overrule State v. Sumerlin.
Regardless, the jury would have to find separate victims, which the state may find problematic if there aren’t separately named victims in each count in the indictment. See State v. Westbrook, 224 Or App 493 (Dec 24, 2008)(“ The problem with the application of Article I, section 44(1)(b), under these circumstances is, as defendant noted in the trial court, that the indictment did not allege (and defendant did not admit) that the relevant crimes involved separate victims. When an error involves a deprivation of the Sixth Amendment right to a jury determination of facts necessary to support sentences, we must remand for resentencing unless we can conclude that the error is harmless beyond a reasonable doubt. Washington v. Recuenco, 548 US 212, 126 S Ct 2546, 165 L Ed 2d 466 (2006).”)
Sex Abuse (e.g., one count genitals, one count breasts): the strange procedural history of State v. McCloud, 177 Or App 511 (2001) and State v. McCloud, 184 Or App 659 (2002) creates an appearance of confusion on this issue even when there really isn’t any. (Short version: McCloud II reversed McCloud I after relying on a case that has since been disavowed. Without question, McCloud I is the more accurate statement of current law.) If the defendant is charged with three counts of sex abuse, for contact with the breasts, genitalia and anus, all three counts would merge into a single conviction unless there is a sufficient pause. Aside from reading the McCloud opinions above, look at State v. Watkins, 236 Or App 339 (July 28, 2010), for a perfectly analogous situation in which seven counts of assault, arising out of seven stabs of the victims, resulted in one only convictions.
Resisting Arrest: different police officers. No case on point. Probably merge because the state is arguably the victim, not the individual officers.
ID Theft – same “stolen identity” in each count — Merge: State v. Alasdair Mac Donald, 232 Or App 431 (Dec 9, 2009). From the opinion: “The five counts of identity theft arose from defendant’s possession of the victim’s wallet, which contained various forms of the victim’s personal identification. On appeal, defendant contends that ‘[t]he trial court erred in failing to merge Counts 1, 3, 4, 5, and 6 into one conviction of identity theft.’ According to defendant, ‘[b]ecause [his] conduct constituted multiple violations of the same statutory provision, harmed the same victim, and was simultaneous rather than separated by any pause,’ the trial court should have merged the identity theft convictions. The state concedes that the trial court erred in that regard. We agree and accept the concession.” Reaffirmed in State v. Hathaway, 236 Or App 184 (June 30, 2010)
Though expected, this is a great opinion, not just for ID Theft cases but also any case in which there are multiple “things,” e.g., guns in a felon in possession case.
And again, no issue of “sufficient pause,” since there is no pause when items are possessed simultaneously.
ID Theft – different stolen identities on the pieces of ID – Unknown whether they merge, but the Oregon Court of Appeals heard oral argument on this issue in January, 2011, so expect an answer before 2012.
The still-unanswered question occurs when the defendant is in possession of multiple pieces of ID, as in State v. Mac Donald (see above), except that the identities on the IDs are different. Whether those counts merge hinges on what constitutes a “victim”, given that one can be convicted of ID Theft for stealing the identity of an imaginary person. There are two different approaches to this issue. First, you could argue that you can’t have imaginary victims, and therefore the statute doesn’t contemplate a victim. If no victim contemplated by statute, all counts from the same criminal episode should merge.
Alternatively, if there is a victim, it would be the person who is or would be defrauded, not the person whose name is used to defraud. See State v. Graves, 92 Or App 642, 759 P2d 1121 (1988) (concluding that a defendant who conspired to have nine checks belonging to Paramount Business cashed a nine different banks was properly convicted of nine counts of forgery because the nine banks were the victims of the conspiracy; Paramount Business, on the other hand was not a victim). In this scenario, failure of the state to prove the defendant intended to defraud different people would result in merger of all counts.
Felon in Possession: see United States v. Ankeny, 502 F.3d 829 (2007) for a federal analysis that might help with the state analysis. (“In United States v. Szalkiewicz, 944 F.2d 653, 653-54 (9th Cir. 1991) (per curiam), we held that, regardless of the number of firearms involved, there is only one offense of being a felon in possession unless there is a showing that the firearms were ‘stored or acquired at different times and places.’ Further, the separateness of acquisition or possession must be found by a jury (or, presumably, admitted by the defendant). Id.; see also United States v. Keen, 104 F.3d 1111, 1118 n.11 (9th Cir. 1997) (same).”)
For a similar analysis under state law, see State v. Padilla, 118 Or App 122 (1993) and State v. Collins, 100 Or App 311 (1990). It’s very likely that neither are good law anymore, because the COA, in State v. Huffman (March 3, 2010) has “also concluded that the simultaneous occurrence of offenses does not give rise to a ‘sufficient pause’ for purposes of ORS 161.067(3). See State v. Mac Donald, 232 Or App 431, 432, 222 P3d 718 (2009) (holding that ORS 161.067(3) required the merger of the defendant’s five convictions for identity theft arising from the defendant’s possession of the victim’s wallet, which contained various forms of the victim’s personal identification); State v. Merrick, 224 Or App 471, 472-73, 197 P3d 624 (2008) (holding that ORS 161.067(3) required the merger of the defendant’s three convictions for first-degree possession of a forged instrument arising from one occasion when the defendant possessed several counterfeit bills).”
In other words, the COA is unlikely to care any longer how the weapons were obtained or where they were stored, if they were possessed simultaneously.
Two Thefts by Taking from one store, in the same episode, merge when no evidence of a sufficient pause. State v. Huffman, 234 Or App 177 (March 3, 2010) Could easily have gone the other way, had evidence of a sufficient pause been presented.
Abuse of a Memorial: merge, if no finding of “sufficient pause.” State v. Bowers, 234 Or App 301 (March 17, 2010).
Money Laundering: merge. 3 different theories of Money Laundering, 3 different counts, 1 conviction. State v. Banks, 236 Or App 179 (June 30, 2010) II. Multiple Counts Of The (1) Same or Similar Crime, (2) Same Criminal Episode, But (3) Slightly Different Elements
A. SAME STATUTORY PROVISION
The key here is that when the merger statute — ORS 161.067(3) – references “same statutory provision,” it is referring to something broader than just the exact statute which describes the crime. For example, robbery in the second degree on a theory of “robbery while purporting to be armed with a dangerous weapon” is from the same “statutory provision” as “robbery when aided by the actual presence of another person,” even though they are in different subsections. State v. White 346 Or 275, 211 P3d 248 (2009)
The best discussion of what constitutes the “same statutory provision” is in a footnote in State v. Cufaude, 239 Or App 188 (Dec 1, 2010). The court hinted in that opinion that UUW might be from the same statutory provision as Assault, although it did not reach the issue. Keep in mind that UUW is a crime because it would lead to an assault with a weapon, and therefore it is intended, in the words of Cufaude, “to address, on a more general level, one unified legislative objective.”
State v. Parkins reaffirms that in determining whether two different versions of one crime are from the same statutory provision,”a court must determine whether the legislature intended to create a single crime or two or more crimes. White, 346 Or 275 (citing cases). 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. (slip op at 4-5) (citing State v. Barrett, 331 Or 27, 35, 10 P3d 901 (2000)).”
Felony Assault IV (child witness) and Felony Assault IV (prior assault conviction against same victim): merge State v. Yong, 206 Ore. App. 522 (2006); State v. Brostrom, 212 Ore. App. 486 (2007)
Theft by Receiving and Theft by Selling: merge: State v Turner 211 Or App 96, 153 P3d 134 (2007))
Kidnapping, different theories: merge. State v. Roberts, 239 Or App 37 (Nov 24, 2010)
Theft by Taking and Theft by Selling: merge. State v. Bergman, 234 Or App 212 (March 3, 2010)
Sex Abuse I (same body part, different elements): merge, State v. Parkins, 346 Or 333 (June 25, 2009). This should not be confused with multiple sex abuse counts where the elements are the same, but the body parts are different (e.g., breasts and genitalia). This merger scenario involves different subsections of the same statute.
Unlawful Use of a Weapon (used against another person in one count, discharged in the direction of a person in another): State v. Gray, ___ Or App (Feb 16, 2011) DO NOT MERGE. A thoughtful, if disappointing decision.
Sex Abuse III (two theories: does not consent for count 1, under 18 for count 2): merge, State v. True, 237 Or App 234 (September 8, 2010)
Criminal Mistreatment: merge, State v. Brostrom, 212 Or App 486 (2007)
Note also that Criminal Mistreatment in the First Degree and Assault IV merge, State v. Smith 229 Or App 518 (July 15, 2009)
Burglary, different crimes intended, one entry, same building: merge, State v. White, 341 Or 624, 147 P3d 313 (2006)
Stalking Protective Order: Multiple counts of Violating a Stalking Order merge when the convictions are based on different theories of guilt from a single telephone call to a single person. State v Sierzega, 236 Or App 630 (August 18, 2010)
Forgery: merge, State v. Kizer, 308 Or 238
Possession of a Forged Instrument and Forgery: merge, State v. Blake, 348 Or 95, 228 P3d 560 (2010). In this case, the court strongly suggests that the two statutes in this case – forgery at ORS 165.013(1)(a) and poss of a forged instrument at ORS 165.022(1) – constitute separate statutory provisions, but merges anyway because the state cannot show that each statutory provision has an element that the other does not. (In some ways, it is like a lesser-included analysis, except that both are C felonies.) The opinion also hints at a potential division in the court in a future case, when there is a question whether two statutory subsections constitute different statutory provisions. In discrete cases, the OSC has favored the defense on that issue, but the Kistler concurrence in St v White (cited in the Blake opinion) suggests that the defense won’t always prevail.
Practice tip: has Blake tacitly overruled State v. Sargent, 110 Or App 194,196 (1991)? In Sargent, the Oregon Court of Appeals ruled that delivery of a controlled substance and possession of a controlled substance do not merge, because possession contains an element that delivery does not: to wit, the possession itself. One does not need to possess controlled substances to deliver them under Oregon statutes. This analysis appears to have been rejected – at least in the analogous world of forged instruments – by the Blake court.
Robbery II (one victim, different theories): Merge. State v. White, 346 Or 275, 211 P3d 248 (2009). See also State v. Paniagua-Miguel, 235 Or App 378 (March 26, 2010) that failure to merge is plain error.
Murder: merge
Felony Fleeing and Misdemeanor Fleeing (longshot, but might merge) III. Related Crimes But Different Elements from Completely Different Statutes
One example: UUV and PSV, merge. State v. Noe, ___ Or App ___ (March 4, 2011).
First, the COA will analyze whether the two crimes are from different statutory provisions and whether each has an element the other does not. However, two charges from two different statutes can merge if all of the elements of one are, by necessity, in the other. See the analysis in another case that was originally awop’d by the Court of Appeal, but granted review by the Oregon Supreme Court, State v Blake, 348 Or 95 (March 25, 2010)(holding that uttering a forged instrument necessarily required possession of that same instrument.)
UEMV and Attempted Theft I: don’t merge, State v. Medley, 239 Or App 25 (Nov 24, 2010). Each has an element the other does not. Further, the court notes that the facts don’t matter, only the elements of the crime: “To determine whether separate convictions may be entered under ORS 161.067(1), we examine only the statutory elements of each offense, not the underlying factual circumstances of the crime. State v. Wright, 150 Or App 159, 162, 945 P2d 1083 (1997), rev den, 326 Or 390 (1998).” IV. Lesser-Included Charges
A conviction would merge with the greater offense if it is a true lesser-included offense. A crime is a lesser-included offense of another crime as a matter of law if either of two circumstances exist: “(1) the elements of the lesser offense necessarily are included in the greater offense because the elements of the former are subsumed in the latter; or (2) all of the elements of the lesser offense are expressly set forth in the accusatory instrument.” State v. Lee, 174 Or App 119, 125, 23 P3d 999, rev den, 332 Or 559 (2001).
Obviously, “attempt” versions of crimes are lesser-includes but so are the other inchoate offenses, “solicitation” and “conspiracy.”
Some lesser-includeds are obvious: the lesser-offense is written identically to the greater offense, except for one less element. Some are not obvious because of the way they are written but are still lesser-included offenses, and still merge, because a defendant would have no choice but to commit the lesser-offense in order to commit the greater-offense. For example, Failure to Yield to an Emergency Vehicle is a lesser-offense than Felony Attempt to Elude, because you can’t commit the latter without committing the former.
Along these same lines, Unlawful Use of a Weapon is a lesser-included, and therefore merges, usually, with Assault in the Second Degree involving a weapon. State v. Ryder, 230 Or App 432 (August 26, 2009). But see State v. Cufaude, 239 Or App 188 (December 1, 2010).
Assault I and Assault II from separate kicks merge, if no significant pause between the kicks. State v. Sullivan, 234 Or App 38 (March 3, 2010)
Assault and Reckless Endangering? No case that I’m aware of, but would likely merge. Not unusual (though arguably piling on) to be charged with both in a case involving a car accident.
Prostitution and Prostitution Procurement Activity: merge, State v. Nelson, 218 Or App. 563 (2008)
Criminal Mistreatment in the First Degree and Assault IV merge, State v. Smith 229 Or App 518 (July 15, 2009)
Attempted Aggravated Murder and Reckless Endangering, Trotter v. Santos, 212 Or App 473, 157 P3d 1233 (2007)
Reckless burning can be a lesser-included of Arson. State v. Leckenby, 200 Or App 684, 117 P3d 273 (2005).
Endangering the Welfare of a Minor merges with Child Neglect in the First Degree. State v. Reiland, 153 Or App 601, 603 (1998)
DCS w/in 1000 feet of a school and DCS, merge. State v. Rodriguez-Gomez, ___ Or App ___ (May 4, 2011)
Does Robbery II merge into Robbery I? In State v. Cortes, 235 Or App 181 (April 28, 2010), the COA declined to answer that question. But in State v. Colmenares-Chavez, the Court of Appeals said, no, they are not from the same statutory provision and therefore they do not merge . It is worth noting that Rob II (purporting to be armed with a dangerous or deadly weapon) is not automatically a lesser-included of Rob I (armed with a deadly weapon), but it can be if the state has also charged the gun minimum as part of the Rob I. State v. Riehl, 188 Ore. App. 1 (2003). So if the gun minimum is charged, that specific theory of Rob II is a lesser-included and therefore should merge into Rob I.
I think there are weaknesses in the Colmenares-Chavez analysis. A discussion of those weaknesses can be found here. But my opinion won’t matter much if the OSC doesn’t grant review. I imagine we’ll know by February or March, 2012, if review has been granted.
Rob III is obviously a lesser-included of Rob II and therefore they merge. State v. Robinson, 237 Or App 567 (Sept 29, 2010)
Per Laura Baldwin: she routinely wins the argument that public indecency and indecent exposure merge under a theory like the one in Nelson, immediately above.
I haven’t seen a case on it (but then again I haven’t looked) but Sex Abuse I is probably a lesser-included of Sexual Penetration.
ORS 161.485(3) prohibits the entry of separate convictions on the same conduct of both an attempt to commit an offense and the actual commission of the offense.
State v. White, 202 Or App 1, 10-11, 121 P3d 3 (2005), affirmed on other grounds 341 Or 624, 147 P3d 313 (2006) (defendant’s two convictions for assault in fourth degree, predicated on series of kicks to victim, were lesser included offenses of his conviction for assault in second degree predicated on same assaultive conduct, and thus the two fourth-degree convictions merged with second-degree conviction).
State v. Sanders, 189 Or App 107, 110, 74 P3d 1105 (2003), rev den 336 Or 657 (2004) (defendant’s convictions for the lesser-included offense of second-degree assault should merge with the conviction of first-degree assault).
MERGER AND PCR:
Note this holding from Ross v Hill, 235 Or App 340 (May 19, 2010):
In light of Barrett and Lucio-Camargo, and the similarity in the structure of the aggravated murder statutes, the burglary statutes, and those involving kidnapping, we conclude that reasonable counsel should also have concluded that raising the issue of merger in the context of kidnapping was likely to be beneficial to petitioner. We conclude for those reasons that any lawyer exercising reasonable professional skill and judgment would have raised the issue whether defendant’s kidnapping convictions should merge under ORS 161.067(1). [Emphasis added.]
There are still numerous unanswered merger questions, some of which have been described above, and counsel should be prepared to make the appropriate arguments, even when no case is on point. For example, does UUW merge with Robbery I or II, especially when the Rob I or II includes a gun minimum allegation? Does Rob II merge into Rob I? Under the right facts, would Sex Abuse merge with Sexual Penetration? There has been a defense-favorable revolution in merger law. Don’t let it pass you by.
