State v. Spivak

Court of Appeals of Oregon

State v. Spivak

880 P.2d 964, 130 Or. App. 153, 1994 Ore. App. LEXIS 1335

CourtCourt of Appeals of Oregon

DecidedSeptember 7, 1994

DocketDA366928: CA A80969

StatusPublished

Cited by1 cases

This text of 880 P.2d 964 (State v. Spivak) 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. Spivak, 880 P.2d 964, 130 Or. App. 153, 1994 Ore. App. LEXIS 1335 (Or. Ct. App. 1994).

Pincite

Opinion

De MUNIZ, J.

On March 14, 1988, a group of six children were shouting obscenities in front of defendant’s residence. Defendant pointed a revolver at the children to frighten them away. He was charged with six counts of violating ORS 166.190.¹ A jury found him guilty on all counts. At sentencing, the court imposed three years of probation and certain firearm restrictions. Defendant appealed, and we affirmed without opinion. State v. Spivak, 103 Or App 486, 797 P2d 1082, rev den 311 Or 60 (1991).

After completing his sentence, defendant filed a motion to set aside a conviction pursuant to ORS 137.225.² The state objected. The court, in a letter opinion, held that “review of the file demonstrates six jury convictions.” Defendant appeals, and we affirm.

Defendant assigns as error the court’s denial of his motion. The issue is whether the court merged the six counts when it entered the judgment of conviction against defendant. If it did not, then ORS 137.225(6)(b) precludes expunction.³ Defendant argues that the sentencing court merged [156]*156each of the jury’s guilty verdicts into one conviction, which permits him to have his conviction expunged under ORS 137.225.

We first examine the judgment. At the top of the judgment is the title, “COMPLAINT COURT RECORD AND JUDGMENT ORDER,” which contains a section that requires the court to mark one of three boxes. The first box asks if there was a jury trial, the second box asks if the trial was waived, and the third box asks if there was a bench trial. The court marked the “Trial by Jury” box. On the same row is the word “Finding” with a blank immediately after it. There, the court handwrote, “Jury G I, II, III, IV, V & VI.”

Defendant does not point to any language in the judgment that suggests that the court merged the convictions. Instead, defendant relies on certain statements made by the sentencing court:

“How about if I treat it as one matter for sentencing purposes? * * * What’s the matter if we treat it as one incident for sentencing purposes?”

In determining what a court has decided, however, we look to the signed judgment, not to statements made in court. State v. Morgan, 104 Or App 62, 65, 798 P2d 1113 (1990). Even if we assume that the judgment is ambiguous, the sentencing court’s statements do not assist defendant’s interpretation.⁴ ORS 161.062(2), in effect at the time when defendant was convicted, provides, in part:

“[WJhen the same conduct or criminal episode violates only one statutory provision, but involves two or more victims, there are as many separately punishable offenses as there are victims.”

Because the jury found defendant guilty of pointing a firearm at six children, there were six victims. In the light of ORS 161.062(2), we interpret the sentencing court’s statement, “treat it as one matter for sentencing purposes,” to [157]*157mean that the court entered six convictions and merged only the sentences. That was within the court’s authority. See, e.g., State v. Crotsley, 308 Or 272, 277 n 4, 278, 779 P2d 600 (1989); see also State v. Eastman, 112 Or App 256, 259-60, 828 P2d 484 (1992).

Defendant’s remaining arguments are without merit.

Affirmed.

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De MUNIZ, J.

On March 14, 1988, a group of six children were shouting obscenities in front of defendant’s residence. Defendant pointed a revolver at the children to frighten them away. He was charged with six counts of violating ORS 166.190.¹ A jury found him guilty on all counts. At sentencing, the court imposed three years of probation and certain firearm restrictions. Defendant appealed, and we affirmed without opinion. State v. Spivak, 103 Or App 486, 797 P2d 1082, rev den 311 Or 60 (1991).

After completing his sentence, defendant filed a motion to set aside a conviction pursuant to ORS 137.225.² The state objected. The court, in a letter opinion, held that “review of the file demonstrates six jury convictions.” Defendant appeals, and we affirm.

Defendant assigns as error the court’s denial of his motion. The issue is whether the court merged the six counts when it entered the judgment of conviction against defendant. If it did not, then ORS 137.225(6)(b) precludes expunction.³ Defendant argues that the sentencing court merged [156]*156each of the jury’s guilty verdicts into one conviction, which permits him to have his conviction expunged under ORS 137.225.

We first examine the judgment. At the top of the judgment is the title, “COMPLAINT COURT RECORD AND JUDGMENT ORDER,” which contains a section that requires the court to mark one of three boxes. The first box asks if there was a jury trial, the second box asks if the trial was waived, and the third box asks if there was a bench trial. The court marked the “Trial by Jury” box. On the same row is the word “Finding” with a blank immediately after it. There, the court handwrote, “Jury G I, II, III, IV, V & VI.”

Defendant does not point to any language in the judgment that suggests that the court merged the convictions. Instead, defendant relies on certain statements made by the sentencing court:

“How about if I treat it as one matter for sentencing purposes? * * * What’s the matter if we treat it as one incident for sentencing purposes?”

In determining what a court has decided, however, we look to the signed judgment, not to statements made in court. State v. Morgan, 104 Or App 62, 65, 798 P2d 1113 (1990). Even if we assume that the judgment is ambiguous, the sentencing court’s statements do not assist defendant’s interpretation.⁴ ORS 161.062(2), in effect at the time when defendant was convicted, provides, in part:

“[WJhen the same conduct or criminal episode violates only one statutory provision, but involves two or more victims, there are as many separately punishable offenses as there are victims.”

Because the jury found defendant guilty of pointing a firearm at six children, there were six victims. In the light of ORS 161.062(2), we interpret the sentencing court’s statement, “treat it as one matter for sentencing purposes,” to [157]*157mean that the court entered six convictions and merged only the sentences. That was within the court’s authority. See, e.g., State v. Crotsley, 308 Or 272, 277 n 4, 278, 779 P2d 600 (1989); see also State v. Eastman, 112 Or App 256, 259-60, 828 P2d 484 (1992).

Defendant’s remaining arguments are without merit.

Affirmed.

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880 P.2d 964, 130 Or. App. 153, 1994 Ore. App. LEXIS 1335, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-spivak-orctapp-1994.

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