One quick observation before I get to the point of this post, one I have made many times before. Ambiguity favors the state. It always does. If the defense lawyer doesn't know whether two crimes merge or are part of the same criminal episode or any one of a dozen different questions that may as yet be unanswered, the defense lawyer still has to warn their client of the worst possible outcome. It does little to reassure a client to say, "If we lose, I think you'll end up with only one conviction after trial, or at most a 13 month sentence, but I don't really know, and it might be up to the Court of Appeals." In other words, the defendant and the client have to roll the dice based on the worst case scenario, and as long as the law is ambiguous, the worst case scenario is usually what the prosecutor thinks it is.
Right now, determining whether only one criminal episode occurred can be a highly ambiguous and uncertain exercise. The defense attorney has to factor time, place and objective, which are all capable of being somewhat amorphous, but even those factors aren't dispositive, for the reasons discussed in the previous post. Can the elements of one crime be proven without reference to the elements of the other? But even then, you have to go beyond the elements to "a complete accounting." And do we know how much weight each of these factors should carry? All the opinions from the appellate courts are extremely fact-driven, but in 20 years, we've maybe had a dozen opinions on this issue, so finding an analogous case isn't easy.
I suggest, instead, that we invite the Oregon Supreme Court to re-boot the whole analysis, and the analysis they should adopt is the one discussed by Judge Armstrong in his dissent in Sparks. His analysis is perfectly sound. It would eliminate almost all ambiguity. We'd have consistent opinions. And it's not like he pulled the analysis out of his hat. He got it directly from the Oregon Supreme Court in State v. Fitzgerald. (See the previous post for all necessary cites and quotes.)
Of course, it's not enough to wait until a case gets up to the OSC to raise this argument. Even if the trial court and the COA are bound by precedent, you should argue for a re-boot if your client finds herself in the following situation: your clients crimes are tied together by time, place and circumstance, but the court is still likely to find separate criminal episodes under a Sparks-type analysis. Sure, still argue that the court should find one criminal episode under current law, but make the back-up argument that adopts the Fitzgerald analysis/Sparks dissent.
It's happened before: the OSC lays out the law, the COA interprets it for 20 years, ultimately getting farther and farther away from the original interpretation, and the OSC steps back in to set the matter straight. (The Kidnapping case law is the most recent, prominent example.) Give the Court this opportunity to undue the messy, ambiguous status quo.