When separate victims don't prohibit merger
by: Ryan • April 8, 2015 • no comments
It is always a temptation to read too much into an opinion where the issue wasn't preserved and the Court of Appeals declines to reach it as plain error. In today's opinion, State v. Jones, the COA remanded for re-sentencing because of a failure to merge some counts, but did not find plain error regarding a secondary merger issue raised by the appellate attorney. The defendant won't likely be injured, because he can now preserve the issue at his re-sentencing. But the part I'm trying not to read too much into is the reason the court gave for not finding plain error.
The unresolved issue was described by the court this way:
- Building on defendant’s first merger argument, defendant next argues that the trial court should have merged the guilty verdicts for attempted aggravated murder (Count 1) and the two remaining counts of first-degree arson (Counts 2 and 4) into a single conviction for attempted aggravated murder, relying on State v. Avritt,175 Or App 137, 28 P3d 642 (2001), rev den , 333 Or 400 (2002). Defendant argues that the verdicts should merge because, as in Avritt, the trial court instructed the jury that it could not find defendant guilty of attempted aggravated murder unless it first found him guilty of the completed underlying felony—here, first-degree arson—making the underlying felony a lesser-included offense of the attempted aggravated murder count. Id. at 140; see also ORS 161.067(1) (“When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.”).
- The state responds that, even if the trial court erred in failing to merge either of the first-degree arson verdicts into the attempted aggravated murder verdict, the error is not reviewable as plain error. The state points out that the case on which defendant relies, Avritt, only addressed the anti-merger provision in ORS 161.067(1). However, the state contends that the anti-merger provision in ORS 161.067(2) applies here because the three counts appear to involve three different victims. See ORS 161.067(2) (“When the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims.”). The attempted aggravated murder count identified Sewell as the victim. The two remaining arson counts identified the property and the occupant to which the count related—number 124 and Marsh for Count 2 and number 122 and Leeder for Count 4. Also, the restitution form identified three individuals as the victims of property damage, Marsh, Garner (an occupant of number 122), and a person who was not an occupant at the time of the fire. Thus, the state contends that it is not apparent on this record that any of the three counts involved the same victim such that those verdicts could merge based on a plain-error argument. See Ailes v. Portland Meadows, Inc., 312 Or 376, 381-82, 823 P2d 956 (1991) (among other things, to address as plain error, the error must “appear ‘on the face of the record,’ i.e., the reviewing court must not need to go outside the record to identify the error or choose between competing inferences, and the facts constituting the error must be irrefutable”). We conclude that, for the reason identified by the state, we cannot address defendant’s additional merger argument as plain error.
The baffling thing about this conclusion is that the very thing the Court -- echoing the state -- says in dispute is, in fact, not a relevant issue in merging these counts. Allow me to re-quote the anti-merger subsection the court does, but adding my own emphasis: See ORS 161.067(2) (“When the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims.”)
Arson and attempted aggravated murder are not from one statutory provision, self-evidently. Therefore, an essential predicate to relying on ORS 161.067(2) does not exist. If that subsection doesn't apply, then regardless of the number of victims, there are no grounds remaining to deny merger.
What constitutes the same statutory provision, incidentally, is quite narrow. Two different theories of Rob II might qualify as the same statutory provision, but the COA has held that two different theories of UUW do not. And none of the appellate courts have ever found that crimes with different maximums (e.g., an A felony and a B felony, like Rob I and Rob II) are ever part of the same statutory provision.
If you think, by the way, that I'm pulling this out of my hat, au contraire. Italic text The COA has already held, consistent with everything I've said above, in State v. Flores, where the court merged Felon in Possession with a firearm and UUW, even though the state was the victim of the former count and a person the victim of the latter.
Likely, the COA simply wants the defendant to make that argument at re-sentencing, as opposed to a rejection of Flores.
