State v. Baker

336 P.3d 547, 265 Or. App. 500, 2014 Ore. App. LEXIS 1288
CourtCourt of Appeals of Oregon
DecidedSeptember 17, 2014
DocketCF120067; A151402
StatusPublished
Cited by8 cases

This text of 336 P.3d 547 (State v. Baker) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Baker, 336 P.3d 547, 265 Or. App. 500, 2014 Ore. App. LEXIS 1288 (Or. Ct. App. 2014).

Opinion

HADLOCK, J.

Defendant pleaded guilty to one count of second-degree burglary and to one count of first-degree theft, both Class C felonies. The trial court accepted the guilty pleas and entered a judgment reflecting that defendant had been convicted of both counts. Defendant appeals that judgment, arguing that the trial court erred by refusing to merge the two guilt determinations into a single conviction. In response, the state argues that this court lacks authority to review defendant’s claim of error because it falls outside the scope of issues that are reviewable on appeal from a guilty plea. On the merits, the state argues that the trial court correctly declined to merge the two guilt determinations into a single conviction. We conclude that we have authority to review defendant’s claim of error and, for the reasons set out below, we affirm the trial court’s judgment.

The state’s argument that we lack authority to review defendant’s merger argument is defeated by our recent decision in State v. Davis, 265 Or App 425, 335 P3d 322 (2014). The defendant in that case pleaded no contest to two felony charges and argued, after the court accepted his pleas, that the trial court should merge the two guilt determinations into a single conviction. Id. at 427. The state moved to dismiss the appeal for lack of jurisdiction. We denied the motion, concluding that we had both jurisdiction over the defendant’s appeal and authority to review his merger argument under ORS 138.222(4) and (7). Id. at 438. Under Davis, we have authority to review defendant’s merger argument in this case.

We proceed to the merits. The two counts to which defendant pleaded guilty were charged as follows:

“Count 1: BURGLARY IN THE SECOND DEGREE
“Count 3: THEFT IN THE FIRST DEGREE — Value $1,000 or more * * *
COUNT 1
[502]*502“The defendant, on or about November 21, 2011, in Umatilla County, Oregon, did unlawfully and knowingly enter and remain in a building located at 1304 SW Dorion Ave, Pendleton, Oregon 97801, Oregon, with the intent to commit the crime of Theft therein * * *.
“The State further alleges that the value of the property stolen or destroyed was $1,000 or more.
“COUNT 3
“The defendant, on or about November 21,2011, in Umatilla County, Oregon, did unlawfully and knowingly commit theft of cigarettes, lottery tickets, digital scales and other property, of a total value of $1,000 or greater, the property of BARE BONES CONVENIENCE STORE; contrary to statute and against the peace and dignity of the State of Oregon.”

(Boldface in original.)

On appeal, defendant contends that his guilty pleas to the two counts should have merged under ORS 161.067(1), which provides:

“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.”

Under that statute, “ [m] erger must occur when a defendant’s acts constitute the same conduct or criminal episode, violate two or more statutory provisions, and all the elements of one offense are necessarily included in the commission of the other offense.” State v. Flores, 259 Or App 141, 144, 313 P3d 378 (2013), rev den, 354 Or 735 (2014). In considering whether two counts merge, we have emphasized that what matters is whether all elements of one offense are subsumed within the elements of the other offense, and not whether other facts, like the “underlying factual circumstances of the crime,” might overlap to that degree. State v. Medley, 239 Or App 25, 28, 243 P3d 147 (2010).

Here, defendant acknowledges that a count of theft would not ordinarily merge with a count of burglary because [503]*503each of those crimes requires proof of an element the other does not. Specifically, to convict a person of second-degree burglary, the state must prove that the person “enter [ed] or remain [ed] unlawfully in a building with intent to commit a crime therein,” ORS 164.215(1); that is not an element of first-degree theft. See ORS 164.055. The crime of first-degree theft, too, requires proof of an element — taking property of another — that burglary does not. ORS 164.015; ORS 164.055.

Nonetheless, defendant asserts, the counts in this case should have merged because both counts in the indictment “alleged the offense subcategory enhancement fact that ‘the value of the property stolen or destroyed was $1,000 or more.’” According to defendant, those offense subcategory allegations functioned as additional elements of the crime, with the result that the count of first-degree theft became a lesser included offense of the count of second-degree burglary. That is, defendant argues, because the burglary charge alleged not only that defendant intended to commit theft, but also that he actually took property worth $1,000 or more, the “theft was entirely subsumed within the burglary count because defendant was alleged to have actually stolen property valued at more than $1,000.” (Emphasis in original.)

The difficulty with defendant’s argument is that it is premised on the idea that offense subcategory allegations are functionally equivalent to elements of a crime. They are not. The state may allege subcategory factors “to elevate the charged offense on the crime-seriousness scale” for purposes of the felony sentencing guidelines. State v. Merrill, 135 Or App 408, 411, 899 P2d 712 (1995), rev dismissed, 323 Or 73 (1996). Thus, the subcategory factors are “required for sentencing purposes”; they “are not themselves elements of the underlying offense.” Id. at 412. We do not understand why factors that relate only to sentencing should affect whether multiple offenses merge into a single conviction. Cf. State v. Williams, 237 Or App 377, 383, 240 P3d 731 (2010), rev den, 350 Or 131 (2011) (characterizing subcategory fact allegations as “pertaining] only to sentencing”).

Moreover, we have already held that subcategory factors do not function as elements for purposes of the merger [504]*504analysis. In State v. Wright, 150 Or App 159, 161, 945 P2d 1083 (1997), rev den, 326 Or 390 (1998), the defendant was convicted of two counts each of manufacturing, delivering, and possessing a controlled substance. He argued that each pair of offenses (for example, the two counts of manufacturing a controlled substance) should merge into a single conviction under ORS 161.067

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Cite This Page — Counsel Stack

Bluebook (online)
336 P.3d 547, 265 Or. App. 500, 2014 Ore. App. LEXIS 1288, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-baker-orctapp-2014.