Ryan@ryanscottlaw.com: Created page with "I have an argument coming up -- quite unrelated to the primary issue of this post -- in which I want to argue that a particular theory of Attempted Aggravated Murder is unlawf..."

2016-06-16T01:28:24Z

Created page with "I have an argument coming up -- quite unrelated to the primary issue of this post -- in which I want to argue that a particular theory of Attempted Aggravated Murder is unlawf..."

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I have an argument coming up -- quite unrelated to the primary issue of this post -- in which I want to argue that a particular theory of Attempted Aggravated Murder is unlawful. The theory has been the basis of convictions numerous times over the years, and in a couple of cases at the Court of Appeals, convictions based on that theory have come up in the context of merger arguments where the court ruled for the state. In those appellate opinions, the lawfulness of the particular theory of Attempted Aggravated Murder was never raised, much less ruled on.

Nevertheless, in a written response to my argument at the trial court level, the prosecutor has cited those merger opinions as proof that their particular theory of the crime is lawful. After all, if it wasn't lawful, wouldn't the COA have pointed that out in their merger opinions? This is irritating primarily because it's an argument of extraordinary frivolity -- it is ridiculous to conclude the COA had reached a particular legal conclusion on an issue that wasn't preserved, briefed, argued or the basis of their opinion. And I don't want to suggest the prosecutor is stupid for making that argument. He's not. Rather, he wants to win, and such an argument -- if it had any merit -- would favor his position, so he makes it. I believe this is known as "motivated reasoning." But such is the quality of analysis we sometimes get.

A similar but more complicated issue arises when the COA rules on something that wasn't vigorously debated but was put before the court. For example, there's one appellate opinion that's vexing me in a particular case, where the appellate court agreed with both parties that X is the law. Since both parties were taking that position, no one pointed out that there's a statute that says something that completely undermines X. But the trial court is bound by X because the COA ruled without the benefit of adversarial positions.

Which brings me to today's opinion, and the unique -- but related -- frustrations it provides. The primary issue raised by both parties was this: if two crimes are from the same criminal episode, but they are not continuous -- that is, the two crimes are separated by a break in the action -- is the standard for running the two crimes consecutively under ORS 137.123(2) the same as the standard for finding separate criminal episodes?

The state's position was that a lower standard than "separate criminal episodes" applied to a finding necessary for consecutive sentences and furthermore, that standard was easily met. In its brief, the state '''never''' argued that these two crimes were from separate criminal episodes. To most people, this would be a tacit concession.

The COA, however, avoided the issue before it by finding separate criminal episodes, reaching its conclusion in a short paragraph that is largely devoid of any analysis. It cites ''Tooley'' for the legal standard, but fails to do the analysis the ''Tooley'' court did, even though the holding is almost entirely at odds with the ''Tooley'' analysis. In ''Tooley'', the defendant ran errands between the commission of two murders, one occurring on one day, the other on the next. Those two murders were not -- strictly speaking -- continuous and uninterrupted, but the ''Tooley'' court found that the evidence supported one criminal episode.

But here's the analysis in today's case, [http://www.publications.ojd.state.or.us/docs/A156467.pdf ''State v Wolfgang'']:

:Defendant argues that the two beatings, separated in time by, at most, 15 minutes, were directed towards a single criminal objective: to incapacitate the victim. Defendant’s focus on the singularity of the criminal objective, however, ignores the trial court’s finding that the conduct was not “continuous and uninterrupted.” Specifically, the court found that defendant had enough time in between the two crimes to “do other, almost kind of mundane things” and then to “reflect, reform a state of mind and intent” before he “came back and administered a second assault.” The trial court’s finding is supported by evidence in the record and is sufficient to support an imposition of a partially consecutive sentence under the language of either ORS 131.505(4) or ORS 137.123(2). Accordingly, the trial court did not err.

<summary>I submit that it is simply impossible to reconcile ''Tooley'' and today's opinion, but assuming it is possible, the COA at least had an obligation to try. In ''Tooley'', there was more than enough time to "do other, almost kind of mundane things" (like errands) and then to "reflect, reform a state of mind and intent" (12 hours) before he "came back and administered a second assault" (murder).

The failure of the court to explain its ruling with anything more than the most cursory analysis unnecessarily feeds the cynical view that 12 hours between crimes, with errands run in between, constitutes just one criminal episode as long as it means the state wins, but 15 minutes between crimes, with mundane activities taking place in between, constitutes two criminal episodes, as long as it means the state wins. (Both cases involved one overarching criminal objective.) I am not that cynical, because I'm actually a very big fan of the judges at the Court of Appeals, but I do think they really whiffed on this one.</summary>

The fact that not even the state was arguing these were two separate episodes should have given the court pause. (It is possible -- it's not clear -- that the trial court didn't find separate criminal episodes.) Appellate counsel likely believed -- I certainly would have -- that the fact of one criminal episode wasn't at issue, so the case was submitted on briefs, and the court did not benefit from the defendant's response had it suggested in oral argument where it's ruling would ultimately lead.
{{wl-publish: 2016-06-15 18:28:24 -0700 | Ryan:Ryan Scott }}

Blog:Main/A curious decision from the COA - Revision history

Ryan@ryanscottlaw.com: Created page with "I have an argument coming up -- quite unrelated to the primary issue of this post -- in which I want to argue that a particular theory of Attempted Aggravated Murder is unlawf..."