State v. Byam

393 P.3d 252, 284 Or. App. 402, 2017 Ore. App. LEXIS 355
CourtCourt of Appeals of Oregon
DecidedMarch 15, 2017
Docket201322117; A156994
StatusPublished
Cited by7 cases

This text of 393 P.3d 252 (State v. Byam) 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. Byam, 393 P.3d 252, 284 Or. App. 402, 2017 Ore. App. LEXIS 355 (Or. Ct. App. 2017).

Opinion

HASELTON, S. J.

Defendant pleaded guilty to several charges, including robbery in the first degree, ORS 164.415 (1) (b), and unauthorized use of a motor vehicle (UUV), ORS 164.135(i)(a), arising from an incident in which he acquired the keys to a car after threatening the owner with a knife, and then drove away. He appeals the consequent judgment, asserting that the trial court, in imposing sentence, erred in directing that the sentence for UUV be served consecutively to, rather than concurrently with, the sentence for first-degree robbery. Specifically, defendant contends that the court erred in determining that the UUV was “not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious offense but rather was an indication of defendant’s willingness to commit more than one criminal offense[.]” ORS 137.123(5)(a). For the reasons that follow, we conclude that the trial court so erred and, consequently, we remand for resentencing but otherwise affirm. ORS 138.222(5)(a).1

The circumstances material to our review are simple and undisputed. Defendant approached the victim, Feist, who was putting his laptop into his car, which was parked on a street in Eugene. Defendant first asked Feist for some change, and Feist complied—and then, after a brief interchange, defendant demanded the keys to Feist’s car. Feist initially refused, saying something akin to “Are you serious?” Defendant then pulled out a knife, brandishing it in Feist’s face, and Feist gave defendant his keys. Defendant drove away in Feist’s car, and the following day, while being pursued by a police officer and while under the influence of methamphetamine, defendant “slammed [Feist’s car] into a brick wall outside a Wendy’s” restaurant in Springfield.

Defendant was charged by indictment with a variety of crimes, including, as germane to our consideration, first-degree robbery (Count 1) and UUV (Count 2), and subsequently [404]*404pleaded guilty to all charges.2 The trial court imposed the statutorily prescribed presumptive sentence of 90 months’ incarceration and three years’ post-prison supervision on the conviction for first-degree robbery, see ORS 137.700 (2)(a)(Q)—and then, notwithstanding defendant’s objection, imposed a consecutive, rather than concurrent, sentence of 52 months’ incarceration and eight months’ post-prison supervision on the UUV conviction.3 In doing so, the court determined that, although the first-degree robbery and the UUV both arose from the same “continuous and uninterrupted course of conduct,” the latter was “not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense.” ORS 137.123(5)(a).4

On appeal, defendant’s sole assignment of error pertains to the imposition of the consecutive, rather than concurrent, sentence for UUV. In that regard, defendant contends:

“The facts of this case—in the light most favorable to the court’s finding—were that defendant threatened to use [405]*405a knife in order to take a car. Defendant committed the robbery to possess the car and he was able to possess the car only by committing the robbery. Because the robbery and the [UUV] were so intertwined, it cannot be said that one is not incidental to the other or that defendant did not need to commit one crime in order to commit the other. To the contrary, under the facts of this case, defendant could not have committed the [UUV] without committing the robbery; the car owner refused to hand over his keys until defendant threatened to use a knife.”

The state remonstrates:

“Viewing the charges and the facts from a practical, real world perspective, it is plain that defendant exhibited a willingness to commit more than one offense. Defendant robbed the victim of [his] car keys at knifepoint. He then operated the victim’s vehicle without the victim’s permission. Defendant did not have to commit both offenses. Instead, he demonstrated that he was willing to both rob the victim of his belongings and that he was willing to unlawfully operate the victim’s vehicle.”5

(Internal quotation marks omitted.)

We agree with defendant. As we once observed, ORS 137.123(5)(a) “is, in many ways, amorphous—and perhaps inscrutable.” State v. Anderson, 208 Or App 409, 415, 145 P3d 245 (2006), rev den, 343 Or 33 (2007). Nevertheless, if the conditions that statute prescribes for the imposition of consecutive sentences are to have any meaningful practical application, they must, in the absence of explicit evidence of multiple intents, preclude the imposition of consecutive sentences where, as here, the same act (obtaining the victim’s keys through the use of a dangerous weapon), undertaken to achieve the same end (the exercise of control over the victim’s car), concurrently, violated both criminal statutes. In such circumstances, the two criminal offenses are so inextricably intertwined that the consecutively sentenced offense (here, the UUV) is, necessarily, “incidental” to the “more serious crime” (here, the first-degree robbery) and cannot be deemed “an indication of defendant’s willingness to commit more than one criminal offense.” ORS 137.123(5)(a).

[406]*406Our conclusion derives from the relationship between the uncontroverted facts, with reasonable inferences necessarily viewed in the light most favorable to the trial court’s findings, see Anderson, 208 Or App at 417; see also State v. Traylor, 267 Or App 613, 616, 341 P3d 156 (2014), and the predicate criminal statutes. As pertinent here, a person commits first-degree robbery “if the person violates ORS 164.395 and the person * * * [u]ses or attempts to use a dangerous weapon.” ORS 164.415(l)(b). ORS 164.395, in turn, provides, in part:

“(1) A person commits the crime of robbery in the third degree if in the course of committing or attempting to commit theft or unauthorized use of a vehicle as defined in ORS 164.135 the person uses or threatens the immediate use of physical force upon another person with the intent of:

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Cite This Page — Counsel Stack

Bluebook (online)
393 P.3d 252, 284 Or. App. 402, 2017 Ore. App. LEXIS 355, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-byam-orctapp-2017.